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Privacy Law Blog

District Court Rules TCPA Applies to Text Messages Even Though Recipient Not Charged to Receive the Message

Posted in Direct Marketing, Electronic Communications

The U.S. District Court for the Northern District of Illinois recently ruled that a plaintiff may maintain a suit for receiving an unsolicited Short Message Service (“SMS”) text message under the Telephone Consumer Protection Act (TCPA) of 1991, even though the plaintiff was not actually charged for receiving the message. In Abbas v. Selling Source, LLC, No. 09-CV-3413 (N.D. Ill. Dec. 14, 2009), Judge Joan B. Gottschall noted that in enacting the TCPA, “Congress was just as concerned with consumers’ privacy rights and the nuisances of telemarketing” as it was with cost-shifting of communications addressed by the TCPA. Judge Gottschall continued to state that “[a]utomated calls invade privacy and pose nuisances regardless of whether the called party is charged for the call, and so congressional intent is furthered by the TCPA’s application to both charged and uncharged calls.”

In the putative class action lawsuit, the plaintiff alleged that Selling Source sent him and others like him SMS text messages in violation of the TCPA. In pertinent part, the TCPA prohibits a person from making a call, other than a call made for emergency purposes or with the prior express consent of the recipient using any automatic telephone dialing system or an artificial or prerecorded voice. Selling Source moved to dismiss the complaint for the failure to state a claim upon which relief can be granted, alleging, amongst other things, that the TCPA does not apply to SMS text messages because SMS text messages are not a “call” within the meaning of the statute and that the plaintiff failed to demonstrate that he was charged for the text message he allegedly received.

The trial court noted that the meaning of “call” as used in the TCPA was ambiguous, but concluded that the meaning of “call” includes text messages. In reaching its conclusion, the court relied in part on the Ninth Circuit’s decision in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009), which noted that “text messaging is a form of communication used primarily between telephones,” and in part on the FCC’s own interpretation of the TCPA such that it applies to text messages. The court also held that a person does not need to be charged to receive the text message to maintain a suit under the TCPA. The court rejected Selling Source’s argument that the TCPA could not apply to text messages because the statute was enacted before the advent of text messaging. Although the trial court dismissed the complaint because of the plaintiff’s failure to meet the federal pleading requirements, the court granted the plaintiff leave to amend to correct the pleading deficiencies.