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Centerline Equipment Corp. v. Banner Personnel Service

March 3, 2008

CENTERLINE EQUIPMENT CORP., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
BANNER PERSONNEL SERVICE, INC. AND JOHN DOES 1-10, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Centerline Equipment Corporation ("Centerline") received a one-page, unsolicited fax advertisement from Banner Personnel Service, Inc. ("Banner"). In response to this perceived nuisance, Centerline filed a class action lawsuit against Banner, as well as ten unnamed additional defendants ("John Does 1-10"), all of whom are allegedly responsible. Centerline alleges that Banner is liable to it on three different theories: Count I asserts that sending the fax violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227; Count II asserts that sending the fax violated the Illinois Consumer Fraud Act ("ICFA"), 815 ILCS 505/2; and Count III asserts that, by causing a single page to be printed on Centerline's fax machine, Banner committed the common law tort of conversion.

Banner now moves to dismiss the Complaint. For the reasons set forth below, the court denies the motion.

BACKGROUND

The following alleged facts are drawn from Centerline's Complaint, and are presented in the light most favorable to Centerline.

Centerline alleges that, within the twelve months before it filed its Complaint, it received a fax ("the Fax"), which reads as follows:

Cover your holiday and vacation days now!

These are important days for you and your company Call someone you have depended on for 36 years!

Call Banner Personnel Service Since 1970 Call Myron Curry and get it done! (The Fax [1], Ex. A to Compl. (underlining and extraneous capitalization omitted); Compl. [1] ¶ 8.) The Fax also provides Banner's phone and fax numbers, and an e-mail address for Myron Curry. (The Fax.) Centerline alleges that Banner was responsible for sending this, as well as many other similar faxes, and that it derived economic benefit from doing so. (Compl. ¶¶ 10-12, 14.) There was no prior relationship between Centerline and Banner, nor did Centerline authorize Banner to send it fax advertisements. (Compl. ¶ 13.)

On information and belief, the Centerline alleges that the fax was sent "as part of a mass broadcasting of faxes" to at least forty other persons. (Compl. ¶¶ 14-15.) Centerline alleges that, as a general matter, sending unsolicited faxes deprives the recipient of its paper and ink or toner, and causes wear and tear on fax machines. (Id. ¶ 2.) Centerline also claims that receiving unwanted faxes wastes the recipient's time and prevents it from receiving and sending other faxes. (Id.)

DISCUSSION

When considering a motion to dismiss, the court tests the sufficiency of the complaint; it does not decide the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). The plaintiff must plead sufficient facts to give fair notice of the claim and the grounds upon which it rests, and those facts, if true, must plausibly suggest that the plaintiff is entitled to relief, "raising that possibility above a speculative level." EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (internal punctuation omitted); see Bell Atlantic v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964-65, 1973 n. 14 (2007). The court treats well-pleaded allegations as true, and draws all reasonable inferences in the plaintiff's favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). The court does not defer to the plaintiff's characterizations as to the meaning of legal texts, however; such determinations are made as a matter of law. See, e.g., Hamlin v. Vaudenberg, 95 F.3d 580, 584 n.3 (7th Cir. 1996); Rochester v. Fishman, No. 95 C 3896, 1997 WL 24720, at *6 (N.D. Ill. Jan. 17, 1997).

I. Telephone Consumer Protection Act

Banner raises a constitutional challenge to Count I, arguing that the TCPA violates the First Amendment. (Mot. to Dismiss [17] at 2-6.) Banner contends, further, that the damages imposed by the TCPA are excessive in violation of the Due Process Clause and the Eighth Amendment. (Mot. to Dismiss at 6-8.) The United States has intervened to defend the constitutionality of the TCPA. (See U.S. Opp. [35] at 1.) For the reasons explained here, this court, like those others that have addressed the question,*fn1 finds that Banner has not demonstrated that the TCPA violates the Constitution, at least under the standards applicable to a motion to dismiss.

A. The TCPA and the First Amendment

The parties agree that unsolicited fax advertisements are commercial speech. (Mot. to Dismiss at 2; Pl.'s Opp. [25-2] at 3.) The court analyzes restrictions on commercial speech using the four-part test articulated in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566 (1980). Because Centerline does not allege that the speech involved here concerns unlawful activity or is misleading, the TCPA will survive First Amendment scrutiny if (1) there is a substantial government interest, which (2) the TCPA directly advances, so long as (3) the restriction of speech is not excessive in proportion to the interest it serves. Id. The court addresses these prongs below.

1. Step One: The Substantial Government Interest

According to Banner, the government's interest in preventing individuals from receiving unsolicited and unwanted faxes does not constitute a substantial governmental interest. (Mot. to Dismiss at 6; Reply to Def. [32] at 5-6; Reply to U.S. [40] at 3-4.) Specifically, Banner argues that the cost of receiving a fax, "[a]t pennies per page," is simply too low to give rise to a substantial governmental interest. (Mot. to Dismiss at 6.)

If a harm to the public is of a very small quantity, preventing that harm cannot be a substantial governmental interest. For instance, in Bolger v. Youngs Drug Products Corp., a contraceptive seller obtained a declaratory judgment that a statutory prohibition on the mailing of unsolicited advertisements violated the First Amendment. 463 U.S. 60, 62-62 (1983). On a direct appeal, the Supreme Court affirmed, rejecting the government's assertion that a prohibition on mailing unsolicited contraceptive advertisements was justified by an interest in protecting the public from receiving unwanted, potentially offensive mail. Id. at 71-72. In the course of its discussion, the court noted that the "short, though regular, journey from mail box to trash can is an ...


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