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Martin v. Comcast Corporation

United States District Court, Seventh Circuit

November 26, 2013

NICHOLAS MARTIN, Plaintiff,
v.
COMCAST CORPORATION, Defendant.

MEMORANDUM OPINION AND ORDER

JOHN A. NORDBERG, District Judge.

Introduction

Plaintiff Nicholas Martin filed this putative class action against Comcast Corporation ("Comcast"), asserting two claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 el seq. Plaintiff alleges that Comcast made eight autodialed telemarketing calls to his cell phone during the week of October 8th to October 14th in 2011. Count I alleges that the eight calls violated § 227(b)(1)(A)(iii), which prohibits any autodialed calls to cell phone numbers. Count II alleges that the eight calls also violated § 227(c)(5), which prohibits telemarketing calls to my phone number either on the national do-not-call registry or on a company-specific do-not-call list. Plaintiff alleges that he put his cell number on the national list before these events and that he called Comcast on October 4, 2011 and also sent Comcast a letter the same day asking that his cell number be put on Comcast's do-not-call list.

Comcast has filed a motion to dismiss pursuant to Rule 12(b)(6), arguing that both counts should be dismissed as a matter of law because plaintiff consented to receive these calls when he became a Comcast customer and gave his cell phone number as his contact number. As for the October 4th phone call and letter, Comcast argues that the regulations interpreting the TCPA allow for a reasonable grace period to process those requests and that a week is a reasonable time as a matter of law.

Allegations

As discussed in the argument section below, the parties argue about whether certain facts and inferences may be taken as true. Here, in this section, we will begin by describing the facts as they were set forth in the complaint.

At some unspecified date, before the events in question, plaintiff put his cell number on the national do-not-call list. (Crnplt. IN 10.) Sometime thereafter, Comcast called his cell phone eight times:

• October 8th at 9:59 am.
• October 10th at 1:45 pm.
• October 10th at 7:21 pm.
• October 11th at 11:48 am.
• October 11th at 5:49 pm.
• October 12th at 7:40 pm.
• October 13th at 10:51 am.
• October 14th at ...

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