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Abbas v. Selling Source

December 14, 2009

SADAT ABBAS, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED INDIVIDUALS, PLAINTIFF,
v.
SELLING SOURCE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Sadat Abbas brought this putative class action against defendant Selling Source, LLC in the Circuit Court of Cook County, Illinois. Abbas alleges that Selling Source sent him and others like him unsolicited Short Message Service text messages ("SMS messages") from an "automatic telephone dialing system" in violation of the Telephone Consumer Protection Act of 1991, as enacted, 47 U.S.C. § 227 (the "TCPA"). Selling Source removed the suit, and the matter is presently before this court on Selling Source's Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 For the reasons stated within, the court grants Selling Source's motion to dismiss in part, and grants Abbas leave to re-plead consistent with this opinion.

I. LEGAL STANDARDS

A. Rule 12(b)(6)

Rule 12(b)(6) allows a defendant to seek dismissal of a complaint that fails to state a claim upon which relief can be granted. Fed R. Civ. P. 12(b)(6). In resolving a Rule 12(b)(6) motion, the court must "construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [the plaintiff's] favor." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1040 (2009). To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). However, the allegations must provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). The plaintiff generally need not plead particularized facts, but the factual allegations in the complaint must be sufficient to "state a claim to relief that is plausible on its face . . . ." Twombly, 550 U.S. at 570 .

B. The TCPA

The relevant portion of the TCPA provides as follows: 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-

(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[.]

47 U.S.C. § 227(b)(1) (2006). The statute further defines "automatic telephone dialing system" (the "ATDS") 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." Id. § 227(a)(1).

II. ANALYSIS

Selling Source urges that this court should dismiss Abbas's Complaint because:

(1) Abbas has failed to make a "a short and plain statement of the claim showing that the pleader is entitled to relief" as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure, given the gloss of Twombly, 550 U.S. 544 and Iqbal, 129 S.Ct. 1937; (2) Abbas has failed to allege that he was charged for the SMS message he received, which Selling Source maintains is required to state a claim under the TCPA; (3) Abbas has failed to allege that the equipment that sent the subject SMS message was an ATDS; (4) the TCPA does not apply to SMS messages like the ones allegedly sent by Selling Source because a text message is not a "call" within the meaning of the statute and is not otherwise proscribed by the TCPA; (5) as applied, the TCPA would violate the First Amendment; and (6) as applied, the TCPA would be void for vagueness.

The court does not rule on a blank slate in resolving many of these questions; state and federal courts have addressed challenges to similar suits brought under the TCPA. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009); see also Joffee v. Acacia Mortgage Corp., 121 P.3d 831 (Ariz. Ct. App. 2005); Pollock v. Island Arbitration & Mediation, Inc., 869 N.Y.S.2d 740 (N.Y. City Ct. 2008); Satterfield v. Simon & Schuster, 2007 WL 1839807 (N.D. Cal. June 26, 2007) rev'd 569 F.3d 946. Also, the Federal Communications Commission (the "FCC"), which Congress tasked with implementing certain regulations under the TCPA, see 47 U.S.C. § 227(b)(2), has issued orders interpreting the TCPA. The court considers the case law and administrative opinions relevant to each contention.

A. Rule 8(a)(2)

Selling Source first argues that Abbas has failed to satisfy federal pleading requirements. After alleging several facts regarding the initial, offending SMS message he allegedly received from Selling Source, Abbas makes broad, conclusory allegations regarding the "numerous" further messages that he allegedly received. See Compl. ¶¶ 17, 18. While Rule 8(a)(2) does not require facts to be pled with particularity, Abbas's allegations here provide no notice to Selling Source about the subsequent messages Abbas allegedly received. There is no allegation regarding when Abbas received the later messages, what those messages stated, or from what numbers he received the later messages. Some fair notice to Selling source is particularly necessary here because Abbas seeks recovery for each violation of the TCPA. See Compl. ¶ 26. Abbas's allegations regarding subsequent messages he received are insufficient but not beyond cure, and so his Complaint is dismissed with leave to amend.

B. "Charged"

Selling Source also argues that Abbas's Complaint should be dismissed because he does not allege that he was charged for the offending SMS messages. According to Selling Source, the TCPA, which prohibits certain "call[s]" made "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," see 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added), is not violated unless "the called party is charged for the call." See also 47 C.F.R. 64.1200(a)(iii) (reiterating TCPA standard).*fn2 The phrase "for which the called party is charged for the call" clearly modifies "any service." What is less clear from this section alone is whether "any service for which the called party is charged" is a catch-all clause that equally describes the types of services that precede it, or whether the clause instead describes a different type of service (one in which the called party is charged) than those listed before it.*fn3

Selling Source claims that a 1992 FCC Report and Order suggests that the TCPA requires a called party to be charged for a violation to occur. See In the Matter of Rules and Regulations Implementing the Telephone Consumers Protection Act of 1991, Report and Order, 7 F.C.C.R. 8752, 8775 (Oct. 16, 1992) (the "1992 Order"). In the 1992 Order, the FCC stated, "Based on the plain language of § 227(b)(1)(iii) [sic], we conclude that the TCPA did not intend to prohibit autodialer or prerecorded message calls to cellular customers for which the called party is not charged." Id. Not two weeks later, however, Congress amended the TCPA to provide that the FCC "may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party." See Pub. L. No. 102-556, 106 Stat. 4181, 4194-95 (Oct. 28, 1992), enacted as 47 U.S.C. § 227(b)(2)(C). If uncharged calls were already exempted from the requirements of the TCPA, as the FCC's 1992 Order and Selling Source maintain, the later ...


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