On Behalf Of A Class Of Similarly Situated Individuals v. Twentieth Century Fox Film Corp..

• Decision Date: 23 March 2010
• Docket Number: No. 09-cv-6344.,09-cv-6344.
• Citation: 702 F.Supp.2d 999
• Parties: Victor LOZANO, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. TWENTIETH CENTURY FOX FILM CORP., a Delaware corporation, Twentieth Century fox Home Entertainment LLC D/B/A Foxstore.com, a Delaware limited liability company, Defendants.
• Court: U.S. District Court — Northern District of Illinois

702 F.Supp.2d 999

Victor LOZANO, individually and on behalf of a class of similarly situated individuals, Plaintiff,

v.TWENTIETH CENTURY FOX FILM CORP., a Delaware corporation, Twentieth Century fox Home Entertainment LLC D/B/A Foxstore.com, a Delaware limited liability company, Defendants.

No. 09-cv-6344.

United States District Court,

N.D. Illinois,

Eastern Division.

March 23, 2010.

COPYRIGHT MATERIAL OMITTED.

Michael J. McMorrow, Ryan D. Andrews, Rafey S. Balabanian, Edelson McGuire LLC, Chicago, IL, for Plaintiff.

Marc Eric Rosenthal, Catherine J. Spector, John Andrew Sloat, Proskauer Rose LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

Before the Court is Defendants Twentieth Century Fox Film Corp. and Twentieth Century Fox Home Entertainment LLC d/b/a Foxstore.com's (collectively “Defendants”) Motion to Dismiss Pursuant to Rule 12(b)(6). For the following reasons, the Court denies Defendants' motion to dismiss.

BACKGROUND

For purposes of deciding Defendants' motion to dismiss, the Court accepts the following allegations as true. Defendants are film studios and/or retailers of movies on DVD. Defendants market their products, in part, by transmitting advertisements via Short Message Services (“SMS” or “text messaging”) to consumers. Text messaging allows cellular telephone subscribers to use their cellular telephones to send and receive short text messages, typically limited to 160 characters. A text message is a call that is directed to a wireless device through the use of the telephone number assigned to the device. Cell phone users must frequently pay their wireless service providers for each text message they receive, or for a cellular text messaging plan, whether or not they authorize the receipt of a text message.

On October 1, 2005, Plaintiff Victor Lozano (“Plaintiff”) received a text message from Defendants advertising the animated film “Robots” available on DVD on Defendants' website, FoxStore.com. Defendants sent the text message to a list of wireless numbers “using equipment that had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” (R. 1-1, Complaint, ¶ 24.) Plaintiff did not consent to receive this wireless text message. Over the next several months, Plaintiff received additional “spam” text message advertisements from Defendants.

Based on these allegations, Plaintiff alleges that Defendants' conduct in sending the text message violates the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff seeks to represent a class of consumers who received one or more unauthorized text message advertisements from Defendants on behalf of FoxStore.

LEGAL STANDARD

I. 12(b)(6) Motion to Dismiss

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). Pursuant to Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a) (2). As the Seventh Circuit recently explained, this “[r]ule reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a claim rather than on technicalities that might keep plaintiffs out of court.’ ” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). This short and plain statement must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Under the federal notice pleading standards, a plaintiff's “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir.2009) (court construes complaint in light most favorable to plaintiff drawing all reasonable inferences in plaintiff's favor).

II. Statutory Provisions

Whether Plaintiff has stated a claim under the TCPA turns on the statutory language of 47 U.S.C. § 227(b)(1)(A)(iii). Section 227 of the TCPA, entitled “Restrictions on use of telephone equipment,” provides:

(a) Definitions. As used in this section-

(1) The term “automatic telephone dialing system” means equipment which has the capacity-

(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B) to dial such numbers.

* * *

(b) Restrictions on use of automated telephone equipment.

(1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-

(i) to any emergency telephone line (including any “911” line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency);

(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;

(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B).

47 U.S.C. § 227.

ANALYSIS

I. A Text Message Is a “Call” Under the TCPA

Section 227 of the TCPA places certain restrictions on the making of a “call.” Defendants first contend that the Court must dismiss Plaintiff's complaint because a text message is not a “call” under the TCPA. Before reaching the merits of Defendants' argument, the Court must determine whether to afford deference to the FCC's interpretation of the word “call” in § 227.

A. Agency Deference

The parties dispute whether the Court should afford deference to the FCC's interpretation of the term “call.” The TCPA grants the FCC the authority to “prescribe regulations to implement the requirements of [§ 227(b) ].” 47 U.S.C. § 227(b)(2). In a 2003 document entitled “In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,” the FCC stated:

We affirm that under the TCPA, it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number. Both the statute and our rules prohibit these calls, with limited exceptions, “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged.” This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service.

18 F.C.C.R. 14014, 2003 WL 21517853 (July 3, 2003) (“2003 FCC Rules”).

Pursuant to Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), courts must defer to agency interpretation of a statute where Congressional intent is unclear, and a statute affords an agency authority under the statute. To determine whether Chevron deference is applicable, the initial question is whether Congress “has directly spoken to the precise question at issue,” either by defining an ambiguous term or by using an unambiguous term that clearly evinces congressional intent. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; Ardestani v. I.N.S., 502 U.S. 129, 135, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991). When interpreting the language at issue, courts “assume[ ] that the legislative purpose is expressed by the ordinary meaning of the words used.” Barker v. Int'l Union of Operating Eng'rs, Local 150, 641 F.Supp.2d 698, 705 (N.D.Ill.2009) (citing INS v. Phinpathya, 464 U.S. 183, 189, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984)).

In analyzing an agency's interpretation of a statute, the Court first applies traditional tools of statutory construction to the language of the statute to determine its plain meaning. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. The agency's interpretation of the statute must not conflict with the plain meaning of the statute. Sullivan v. Everhart, 494 U.S. 83, 88-9, 110 S.Ct. 960, 108 L.Ed.2d 72 (1990); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-292, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). If Congress' intent is not clear, the Court determines whether the agency's answer is based on a permissible construction of the statute. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778; Ali v. Achim, 468 F.3d 462, 468 (7th Cir.2006); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405...