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Satterfield v. Simon & Schuster, Inc.

United States Court of Appeals for the Ninth Circuit

February 11, 2009, Argued and Submitted, San Francisco, California; June 19, 2009, Filed

No. 07-16356


 [*948]  N.R. SMITH, Circuit Judge:

Laci Satterfield, individually and on behalf of those similarly situated, appeals the district court's grant of summary  [**2] judgment in favor of Simon & Schuster, Inc. and ipsh!net Inc. ("ipsh!"). 1 Satterfield alleges a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, arising after Satterfield received an  [*949]  unsolicited text message. We hold that there is a genuine issue of material fact concerning whether the equipment used by Simon & Schuster has the capacity to both (1) store or produce numbers to be called using a random or sequential number generator and (2) to dial such numbers. Giving deference to the Federal Communications Commission ("FCC"), see Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), we hold that it is reasonable to interpret "call" under the TCPA to include both voice calls and text messages. We also conclude that Simon & Schuster is not an affiliate or brand of Nextones and therefore Satterfield did not expressly consent to receive this text message from Simon & Schuster. Accordingly, we reverse the district court and remand.


Satterfield brought this action against Simon & Schuster for text messaging an advertisement  [**3] to a cellular phone she owned in violation of the TCPA. Satterfield received this text message after she became a registered user of ("Nextones") (not a defendant in this case). Satterfield joined Nextones at the request of her minor son in order to receive a free ringtone. In order for Satterfield to get the free ringtone for her son, she had to fill out a form which read:

Nextones Member Sign Up

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569 F.3d 946 *; 2009 U.S. App. LEXIS 13197 **; 48 Comm. Reg. (P & F) 60

LACI SATTERFIELD, individually, and on behalf of others similarly situated, Plaintiff-Appellant, v. SIMON & SCHUSTER, INC., a New York corporation; IPSH!NET, a Delaware corporation aka IPSH, Defendants-Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. CV-06-02893-CW. Claudia Wilken, District Judge, Presiding.

Satterfield v. Simon & Schuster, 2007 U.S. Dist. LEXIS 46325 (N.D. Cal., June 26, 2007)

Disposition: REVERSED and REMANDED.


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Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Legal Entitlement, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Appeals, Summary Judgment Review, Standards of Review, Governments, Legislation, Interpretation, Administrative Law, Judicial Review, Standards of Review, Arbitrary & Capricious Standard of Review, Deference to Agency Statutory Interpretation, Business & Corporate Law, Corporations, General Overview