PrintIn an action alleging violation of the Telephone Consumer Protection Act (TCPA) through the transmission of unsolicited text messages, the U.S. District Court for the Northern District of Illinois granted the defendant's motion to dismiss in part. The plaintiffs' allegations regarding the initial text message he received met pleading requirements, but allegations regarding the receipt of subsequent messages were not adequately pled.
Sadat Abbas sued Selling Source L.L.C. alleging that it sent him and similarly situated individuals unsolicited short message service text messages (SMS messages). The complaint asserted that Selling Source's conduct violated the TCPA.
Selling Source moved to dismiss arguing that Abbas' allegations failed to satisfy federal pleading standards. Selling Source also argued that Abbas did not allege that the SMS messages were sent from an automatic telephone dialing system (ADTS) and that the TCPA did not apply to SMS messages.
An ADTS is equipment which has the capacity to store and dial telephone numbers randomly or sequentially. Abbas claimed that the text of the first SMS message he received suggested that it was from an institutional sender without any personalization. He further claimed that Selling Source sent mass transmissions of the impersonal messages to potential customers. Abbas lastly claimed that Selling Source had no reason, other than for telemarketing purposes -- to call his number.
The district court determined that Abbas' allegations created a reasonable inference that Selling Source sent mass SMS messages using equipment with some automated capacity. The term "call" within the text of the TCPA is ambiguous. However, the district court agreed with the FCC's interpretation that the TCPA applies to both voice and text calls.
The district court concluded that dismissal in part was warranted. Although Abbas sufficiently alleged a TCPA violation for the initial SMS message that he received, the allegation that he received numerous additional messages did not satisfy federal pleading requirements. Abbas did not allege when he received the later messages, what they stated or from what numbers he received the messages.
The district court dismissed Abbas' claims regarding SMS messages he allegedly received from Selling Source after an initial message.
Judge : Joan B. Gottschall
Counsel for Abbas : Michael J. McMorrow, Myles P. McGuire, Evan M. Meyers, Ryan David Andrews, KamberEdelson L.L.C., 312-589-6370, Chicago.
Counsel for Selling Source : Blaine C. Kimrey, Bryan K. Clark, Lathrop & Gage L.L.P., 312-920-3300, Chicago.
Source: Class Action Law Monitor, 01/15/2010
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