Another federal court not long ago affirmed that text messages come within the scope of unsolicited “calls” that are prohibited under the Telephone Consumer Protection Act (TCPA). Notable here is that, unlike in a previous U.S. Circuit Court opinion on the same issue (Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009)), the U.S. District Court for the Northern District of Illinois in reaching its conclusions went through a more extensive analysis of the statute, its legislative history and related Federal Communications Commission rules and pronouncements. The result is that this decision, Abbas v. Selling Source, Case No. 09-CV-3413 (N.D. Ill. Dec. 14, 2009), combined with the Ninth Circuit’s views in Satterfield, is likely to put this issue to rest.
The TCPA prohibits a person “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. Sec. 227(b)(1)(A)(iii).
In addition to confirming that text messages are “calls” within the meaning of the TCPA, the Abbas court also followed the Satterfield court’s view that merely using a device or system that has the capacity to perform automatic telephone dialing is sufficient to invoke the statutory prohibition even if the automatic dialing feature was not actually used in sending out the subject messages.