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Satterfield v. Simon & Schuster, Inc. - 569 F.3d 946 (9th Cir. 2009)

Rule:

When evaluating the issue of whether equipment is an Automatic Telephone Dialing System, the Telephone Consumer Protection Act's clear language mandates that the focus must be on whether the equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. Accordingly, a system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it. 

Facts:

Plaintiff Laci Satterfield filed an action in federal district court individually and on behalf of others similarly situated against defendant Simon & Schuster, Inc., for text messaging an advertisement to a cellular phone she owned. Satterfield claimed the text messages violated the Telephone Consumer Protection Act ("TCPA"). Satterfield claimed that she received an unsolicited text message from Simon & Schuster and after she became a registered user of Nextones.com, a ringtone company. Simon & Schuster filed motion for summary judgment, which the district court granted. Satterfield appealed.

Issue:

Were there issues of material fact concerning whether the equipment utilized by Simon & Schuster had the requisite capacity under the TCPA?

Answer:

Yes.

Conclusion:

The appellate court reversed and remanded the district court's judgment. The court reasoned that a system did not need to actually store, produce, or call randomly or sequentially generated telephone numbers to be considered an Automatic Telephone Dialing System, it only needed to have the capacity to do so. The court held that there was a genuine issue of material fact concerning whether the equipment used by Simon & Schuster had 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. Also, giving deference to the Federal Communications Commission, the court held that it was reasonable to interpret "call" under the TCPA to include both voice calls and text messages. Finally, although Satterfield had consented to receiving promotional material from Nextones.com or its affiliates and brands, Simon & Schuster was not an affiliate or brand of that company, and therefore Satterfield did not expressly consent to receive the text message from it.

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