Pepicelli v. FedEx Corporate Servs., Inc., Case No.: 18-cv-03653-PWG
| Decision Date | 06 May 2020 |
| Docket Number | Case No.: 18-cv-03653-PWG |
| Citation | 458 F.Supp.3d 343 |
| Parties | Anthony PEPICELLI individually and on behalf of all others similarly situated, Plaintiffs, v. FEDEX CORPORATE SERVICES, INC., Defendant. |
| Court | U.S. District Court — District of Maryland |
Gary E. Mason, Mason Lietz & Klinger LLP, Washington, DC, Gary Klinger, Pro Hac Vice, Kozonis and Klinger Ltd., Chicago, IL, for Plaintiffs.
John W. Campbell, Pro Hac Vice, Michael C. McLaren, Pro Hac Vice, Peter D. Blumberg, Federal Express Corporation, Memphis, TN, for Defendant.
Plaintiff, Anthony Pepicelli, individually and on behalf of all others similarly situated, filed suit against Defendant, FedEx Corporate Services, Inc. ("FedEx"), asserting a violation of the plaintiff's rights under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (the "TCPA"). Am. Compl., ECF No. 30. Pending before the Court is Defendant's Motion for Summary Judgment, ECF No. 36.1 FedEx argues that the Court should grant its Motion for Summary Judgment because the text messages were sent pursuant to an exemption to the TCPA granted by the Federal Communications Commission ("FCC"). Mot. Mem. 2, ECF No. 36-1. The Court is required to grant motions for summary judgment when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials," that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)(1)(A) ; see Baldwin v. City of Greensboro , 714 F.3d 828, 833 (4th Cir. 2013). Because I find that there is no genuine dispute of material fact regarding the texts being sent pursuant to an exemption to the TCPA, the Motion for Summary Judgment is GRANTED.
FedEx collects the cellphone numbers of its customers in its ordinary course of business. Am. Compl. 6. FedEx uses cellphone numbers to send customers text messages in order to notify them about the status of their package deliveries. Id. Pepicelli claims to be a recipient of unsolicited and unwanted automated text messages sent by FedEx to his cellphone. Id. Pepicelli began receiving text messages from FedEx on or around August of 2017. Id. He claims to have no connection to the customer or the packages related to the text messages received. Id. Pepicelli also asserts that his cellphone number has been registered on the National Do Not Call Registry for two years prior to the filing of this suit. Id. at 6-7. Pepicelli estimates to have received more than six unauthorized and unsolicited text messages from FedEx over a period of four years. Id. at 7. He was not charged for any of the text messages. Mot. Mem. at 6. He received no text messages in the form of telemarketing, solicitation, or advertising, and they were all less than 160 characters. Id. Pepicelli was offered the ability to opt out of receiving future delivery notification calls and messages by replying "STOP" to the text messages, but he did not. Id. at 7.
The content of each individual text message sent to Pepicelli was a variation of the following:
Free FedEx alert: Signature req'd by someone at your address for package delivery 08/17. fedex.com/776980090563/en_US. Reply STOP to stop msgs.
Id. at 7-8 (citing Mot. Ex. C ¶ 13, ECF No. 36-4). FedEx reports that Pepicelli was sent a total of 20 text messages between August 16, 2016 and October 15, 2018. Id. Six of the messages were related to packages where the package recipient name was Anthony Pepicelli, and in each case, the cellphone number was provided by the shipper as the number for the package recipient, and only one message per package was sent. Mot. Ex. C ¶¶ 5, 11. Pepicelli does not dispute this but asserts that he received more than ten unauthorized texts sent to his cellular phone. Pl.’s Resp. 1, 5, ECF No. 37.
On November 28, 2018, Pepicelli and Amberlyn Johnston filed a purported class action complaint against FedEx. Compl., ECF No. 1. In February 2019, the parties participated in a status conference with the Court, during which it was determined that it would be efficient to resolve a potentially dispositive legal issue before addressing class claims, and an amended scheduling order was approved. See ECF Nos. 24-27. Plaintiffs then moved to amend their original Complaint to dismiss Amberlyn Johnston's claims, and the motion was granted as unopposed. ECF Nos. 28-29.2
The First Amended Class Action Complaint alleging that FedEx violated federal law by sending unauthorized and unsolicited automated text messages to the cellphones of consumers without their consent was filed on March 26, 2019, and it is the operative Complaint. Am. Compl., ECF No. 30. Pepicelli specifically alleges that by initiating these unauthorized texts, FedEx violated his statutory rights, which resulted in actual harm. Id. at 1-2. Pepicelli alleges two causes of action: (1) Violations of the TCPA; and (2) Knowing and/or Willful Violations of the TCPA. Id. at 12-13. He seeks an injunction requiring FedEx to cease all unauthorized automated texting activity, an award of actual and statutory damages to Plaintiff and members of the class, including treble damages for willful violation, and attorneys’ fees. Id. at 2, 13-14.
Currently pending before the court is Defendant's Motion for Summary Judgment, ECF No. 36. In brief, it contends that the alleged texts were sent pursuant to an exemption to the TCPA ("the Exemption") as established by the FCC. Mot. Mem. 1-2. Because of the Exemption, FedEx contends that the TCPA was not violated, and requests that judgment be granted in its favor as a matter of law. Id.
In 1991, Congress passed the Telephone Consumer Protection Act ("TCPA"). It was enacted in response to a growing number of consumer complaints regarding telemarketing practices. The purpose of this bill was "to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile ( [f]ax) machines and automatic dialers." S. REP. 102-178, 1, 1991 U.S.C.C.A.N. 1968, 1968.
47 U.S.C. § 227(b)(1)(A)(iii).
The TCPA defines an "automatic telephone dialing system" as "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." 47 U.S.C. § 227(a)(1)(A)-(B). Federal courts have held that while the TCPA does not expressly define "call," as referenced in 47 U.S.C. § 227(b)(1)(A)(iii), the Federal Communications Commission ("FCC") has determined that the TCPA "encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls ...." Satterfield v. Simon & Schuster, Inc. , 569 F.3d 946, 952 (9th Cir. 2009) (quoting In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115 (July 3, 2003)). The FCC further ruled that the "prohibition on using automatic telephone dialing systems to make calls to wireless phone numbers applies to text messages (e.g., phone-to-phone SMS)." Id. ().
When the TCPA was enacted, Congress authorized the FCC to implement exemptions for commercial calls that "(I) will not adversely affect the privacy rights that this section is intended to protect; and (II) do not include the transmission of any unsolicited advertisement." 47 U.S.C. § 227(b)(2)(B)(ii). Congress further authorized the FCC to exempt by rule or order "calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect." 47 U.S.C. § 227(b)(2)(C).
In 2012, the Cargo Airline Association ("CAA") filed a "Petition for Expedited Declaratory Ruling" ("the Petition") with the FCC. In the Matter of Cargo Airline Association Petition for Expedited Declaratory Ruling ("FCC 14-32 Order"), 29 FCC Rcd. 3432, 3433 (Mar. 27, 2014). The CAA sought a clarification that package delivery companies can rely upon the information provided by the package sender, including representations by a package sender that it has obtained the requisite prior consent from the recipient to send informational calls and texts related to package delivery. Id. Alternately, the CAA asked the FCC to declare package delivery ...
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