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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LACI SATTERFIELD, individually, and on behalf of others similarly
situated, No. 07-16356 Plaintiff-Appellant,
v.p
SATTERFIELD v. SIMON & SCHUSTER, INC, Defendants-Appellees.
Appeal from the United States District Court for the Northern
District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
February 11, 2009—San Francisco, California
Filed June 19, 2009
Before: John T. Noonan, David R. Thompson andN. Randy Smith,
Circuit Judges.
Opinion by Judge N.R. Smith 7329
COUNSEL
John G. Jacobs, The Jacobs Law Firm, Chtd., Chicago, Illinois, for the
plaintiff-appellant. Peter L. Winik and Barry J. Blonien, Latham & Watkins LLP,
Washington, DC, for the defendants-appellees.
OPINION
N.R. SMITH, Circuit Judge:
Laci Satterfield, individually and on behalf of those similarly
situated, appeals the district court’s grant of summary
judgment in favor of Simon & Schuster, Inc. and ipsh!net Inc.
(“ipsh!”). Satterfield alleges a violation of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, arising
after Satterfield received an 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 (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.
I. FACTS AND PROCEDURAL HISTORY
Satterfield brought this action against Simon & Schuster for
text messaging an advertisement to a cellular phone she
owned in violation of the TCPA. Satterfield received this text
message after she became a registered user of Nextones.com
(“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
Sign up to become a registered user of Nextones
today, for free! There is absolutely no cost involved in registering!
Satterfield then provided her son’s initials and first three
letters of his last name, her email address, zip code, phone
number, and account information. The form also provided a
check box that was followed by:
Yes! I would like to receive promotions from Nextones
affiliates and brands. Please note, that by
declining you may not be eligible for our FREE content.
By checking Submit, you agree that you have read
and agreed to the Terms and Conditions.
Satterfield checked the box opposite the “Yes!” and pressed
the submit button.
Subsequently, on January 18, 2006 at 12:30 a.m., Satterfield
received a text message (on the phone registered with
Nextones.com) from Simon & Schuster advertising its publication
of a novel by Stephen King. The message stated:
“The next call you take may be your . . . Join the Stephen
King VIP Mobile Club at www.cellthebook.com. RplySTOP2OptOut.
PwdByNexton.”
Simon & Schuster sent the text message as part of its promotional
campaign for the Steven King novel Cell. Simon &
Schuster outsourced the promotional campaign to ipsh!, who
obtained a list of 100,000 individuals’ cell phone numbers
from Mobile Information Access Company (MIA). MIA was
Nextones’ exclusive agent for licensing the numbers of Nextones
subscribers.
MIA provided ipsh! with electronic plain text or Excel files
containing the list of 100,000 mobile numbers of Nextones
subscribers. ipsh!’s programmers then imported the list into a
database and entered the relevant information for the promotional
messages into the database, where they were stored
until they were programmed to be sent to the intended recipients.
ipsh! then sent the file to mBlox, Inc., an “aggregator,”
or mobile transaction networking services company. mBlox
handled the actual transmission of the text messages to the
wireless carriers. After receiving some complaints about the
promotional text message, mBlox refused to send out any
more messages on ipsh!’s behalf.
Satterfield filed suit, alleging a violation of the TCPA for
Simon & Schuster’s transmission, of this unsolicited text message
to her and other class members’ cell phones, by an Automatic
Telephone Dialing System (“ATDS”). Simon &
Schuster moved for summary judgment, arguing that (1) it
had not used an ATDS, (2) Satterfield had not received a
“call” within the meaning of the TCPA, and (3) Satterfield
had consented to the message and had not been charged for
its receipt. The district court granted the summary judgment
holding that (1) Simon & Schuster and ipsh! had not used an
ATDS and (2) Satterfield had consented to receiving the message.
The district court did not rule on Simon & Schuster’s
argument that a text message is not a “call” under the TCPA.
Accordingly, judgment was entered for Simon & Schuster.
Satterfield timely filed this appeal.
II. DISCUSSION
[1] Summary judgment is appropriate when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the nonmoving party, the movant
is clearly entitled to prevail as a matter of law. Fed. R. Civ.P. 56.
The TCPA provides:
It shall be unlawful for any person within the United
States, or any person outside the United States if the
recipient is within the United States—
(A) 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. § 227(b)(1)(A)(iii).
(a) Definitions
As used in this section—
(1) The term “automatic telephone dialing system”
means equipment which has the capacity—
(A) to store or produce telephone numbers to be called,
using a random or sequential number generator; and
(B) to dial such numbers
47 U.S.C. § 227(a)(1).
Reviewing the district court’s grant of summary judgment
de novo, Nolan v. Heald College, 551 F.3d 1148, 1153 (9th
Cir. 2009), we hold that the district court erred, because (A)
7336 SATTERFIELD v. SIMON & SCHUSTER, INC.
there was a disputed issue of material fact as to whether the
system Simon & Schuster used was an ATDS; (B) the text
message was a “call” within the meaning of the TCPA; and
(C) Satterfield did not consent to the receipt of such a message,
because Simon & Schuster is not an affiliate or brand of
Nextones.
A. The ATDS
The district court erred in holding that there was no genuine
and disputed issue of material fact as to whether the system
Simon & Schuster used was an ATDS. The district court
focused its analysis on whether the equipment used by Simon
& Schuster stored, produced, or called numbers “using a random
or sequential number generator.” The district court even
noted that “the parties’ dispute centers on the phrase ‘using a
random or sequential number generator.’ ” With this as its
focus, the district court held that “the equipment here does not
store, produce or call randomly or sequentially generated telephone
numbers, the Court grants summary judgment in the
Defendants’ favor: the equipment at issue is not an automatic
telephone dialing system under the TCPA.” We find that the
district court focused its analysis on the wrong issue in its
determination of what constitutes an ATDS.
In construing the provisions of a statute, we first look to the
language of the statute to determine whether it has a plain
meaning. McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th
Cir. 2008). “The preeminent canon of statutory interpretation
requires us to presume that [the] legislature says in a statute
what it means and means in a statute what it says there. Thus,
our inquiry begins with the statutory text, and ends there as
well if the text is unambiguous.” Id. (quoting BedRoc Ltd.,
LLC v. United States, 541 U.S. 176, 183 (2004) (internal quotation
marks omitted)). Reviewing this statute, we conclude
that the statutory text is clear and unambiguous.
[2] When evaluating the issue of whether equipment is an
ATDS, the statute’s clear language mandates that the focus
SATTERFIELD v. SIMON & SCHUSTER, INC. 7337
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. Since the district court did not focus its decision on this
issue, we must then review the record to determine if summary
judgment may issue. At the hearing, counsel for the parties
suggested that the record was not clear regarding that issue. We agree.
Reviewing the record, we find that there is a genuine issue
of material fact with regard to whether this equipment has the
requisite capacity. Satterfield’s expert, Randall A. Snyder,
opined that this telephone system “stored telephone numbers
to be called and subsequently dialed those numbers automatically
and without human intervention . . . [t]he use of stored
numbers, randomly generated numbers or sequentially generated
numbers used to automatically originate calls is a technical
difference without a perceived distinction . . . .” He later
opined that “[t]his is the primary automated function within
the platform that constructs text messages and individually
enters them into a message queue for subsequent delivery to
the cellular networks . . . . The cellular phone numbers residing
in the cellular phone number database for the specific
application are applied in sequence, as they are stored in the
database, to serve as the destination cellular phone number for
each individual text message.” However, Snyder never specifically
declared that this equipment had the requisite capacity.
On the other hand, Jay Emmet, President of mBlox (company
responsible for the actual transmission of the text messages
and a nonparty in this case), testified that the system used was
not capable of sending messages to telephone numbers not fed
to the system by mBlox, nor was it capable of generating random
or sequential telephone numbers.
[3] Therefore, this limited record demonstrates that there is
a genuine issue of material fact whether this telephone system
has the requisite capacity to be considered an ATDS under the
TCPA. Given the conflicting testimony and this limited
record, we hold that summary judgment on this issue was
inappropriate. We therefore remand to the district court to
determine whether the equipment used by Simon & Schuster
had the requisite capacity.
B. The Call
The district court did not address Simon & Schuster’s argument
that sending a text message does not fall within the Act,
because a text message is not a “call” within the meaning of
the TCPA. Reviewing this issue, we hold that a text message
is a “call” within the meaning of the TCPA.
[4] The TCPA makes it unlawful “to make any call” using
an ATDS. 47 U.S.C. § 227(b)(1)(A). While the TCPA does
not define “call,” the FCC has explicitly stated that the
TCPA’s prohibition on ATDSs “encompasses both voice calls
and text calls to wireless numbers including, for example,
short message service (SMS) calls . . . .” In re Rules and Regulations
Implementing the Telephone Consumer Protection
Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115
(July 3, 2003) (hereinafter “2003 Report and Order”). The
FCC subsequently confirmed that the “prohibition on using
automatic telephone dialing systems to make calls to wireless
phone numbers applies to text messages (e.g., phone-to-phone
SMS), as well as voice calls.” In the Matter of Rules and Regulations
Implementing the Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003; Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, 19 FCC Rcd. 15927, 15934
(FCC August 12, 2004). In the Notice of Proposed Rulemaking of the
CANSPAMAct, the FCC also noted “that the TCPA and Commission
rules that specifically prohibit using automatic telephone
dialing systems to call wireless numbers already apply to any
type of call, including both voice and text calls.” Id. at 15933.
Therefore, the FCC has determined that a text message falls
within the meaning of “to make any call” in 47 U.S.C.§ 227(b)(1)(A)
In Chevron, the Supreme Court set forth a two-step test for
judicial review of administrative agency interpretations of
federal law. We give broad deference to an agency’s interpretation
meeting this test. First, we must determine “if the
intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S.
at 842-43. Second, if a statute is silent or ambiguous with
respect to the issue at hand, we must defer to the agency so
long as “the agency’s answer is based on a permissible construction
of the statute.” Id. at 843. An agency’s interpretation
is permissible, unless it is “arbitrary, capricious, or manifestly
contrary to the statute.” Id. at 844.
[5] While Chevron only considered formal notice-and comment
rulemaking, the Supreme Court in United States v.
Mead Corp., 533 U.S. 218 (2001), clarified that “administrative
implementation of a particular statutory provision qualifies
for Chevron deference when it appears that Congress
delegated authority to the agency generally to make rules carrying
the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that
authority.” Wilderness Soc. v. U.S. Fish & Wildlife, 353 F.3d
1051, 1060 (9th Cir. 2003) (quoting United States v. Mead
Corp., 533 U.S. 218, 226-27 (2001)). “Delegation of such
authority may be shown in a variety of ways, as by an agency’s
power to engage in adjudication or notice-and-comment
rulemaking, or by some other indication of a comparable congressional
intent.” Mead, 533 U.S. at 227. Those administrative
decisions not meeting these standards may still be given
deference under Skidmore v. Swift & Co., 323 U.S. 134
(1944). Mead, 533 U.S. at 228.
[6] Congress has delegated the FCC with the authority to
make rules and regulations to implement the TCPA. See 47
U.S.C. § 227(b)(2). Pursuant to this authority, the FCC stated,
“We affirm that under the TCPA, it is unlawful to make any
call using an automatic telephone dialing system or an artificial
or prerecorded message to any wireless telephone number.
Both the statute and our rules prohibit these calls, with
limited exceptions, ‘to any telephone number assigned to a
paging service, cellular telephone service, specialized mobile
radio service, or other common carrier service, or any service
for which the called party is charged.’ This encompasses both
voice calls and text calls to wireless numbers including, for
example, short message service (SMS) calls, provided the call
is made to a telephone number assigned to such service.”
2003 Report and Order at 14115. This interpretation has the
force of law and is therefore entitled to Chevron deference if
(1) “call” is not defined by the TCPA and (3) if the FCC’s
interpretation of the statute is reasonable. Chevron, 467 U.S. at 843-44.
1. Call is not defined by the TCPA.
The first step under the Chevron analysis is to determine
“whether Congress has directly spoken to the precise question
at issue.” Id. at 842. If it has, Congress’s intent must be
enforced and that is the end of the matter. “If a court, employing
traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue,
that intention is the law and must be given effect.” Id. at 843
n.9. “It is well settled that the starting point for interpreting
a statute is the language of the statute itself.” Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
56 (1987) (internal citation and quotation marks omitted).
“[U]nless otherwise defined, words will be interpreted as taking
their ordinary, contemporary, common meaning.” Perrin
v. United States, 444 U.S. 37, 42 (1979)). Another “fundamental
canon of statutory construction [is] that the words of
a statute must be read in their context and with a view to their
place in the overall statutory scheme.” FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting
Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809
(1989)). We may also read statutory terms in light of the purpose
of the statute. Wilderness Soc’y, 353 F.3d at 1060. If,
under theses canons, or other traditional means of determining
Congress’s intentions, we are able to determine that Congress
spoke clearly, we need not look to the FCC’s interpretations.
See id. at 1061.
[7] The precise language at issue here is what did Congress
intend when it said “to make any call” under the TCPA. Utilizing
the aforementioned canons of statutory construction, we
look to the ordinary, contemporary, and common meaning of
the verb “to call.” Webster’s defines “call” in this context3 as
“to communicate with or try to get into communication with
a person by a telephone.” Webster’s Third New International
Dictionary 318 (2002). This definition suggests that by enacting
the TCPA, Congress intended to regulate the use of an
ATDS to communicate or try to get into communication with
a person by a telephone. However, this law was enacted in
1991 when text messaging was not available.
[8] We also consider the purposes of the TCPA. The TCPA
was enacted to “protect the privacy interests of residential
telephone subscribers by placing restrictions on unsolicited,
automated telephone calls to the home and to facilitate interstate
commerce by restricting certain uses of facsimile
machines and automatic dialers.” S. Rep. No. 102-178, at 1
(1991), reprinted in 1991 U.S.C.C.A.N. 1968. The TCPA was
enacted in response to an increasing number of consumer
complaints arising from the increased number of telemarketing
calls. See id. at 2. The consumers complained that such
calls are a “nuisance and an invasion of privacy.” See id. The
purpose and history of the TCPA indicate that Congress was
trying to prohibit the use of ATDSs to communicate with others
by telephone in a manner that would be an invasion of privacy.
We hold that a voice message or a text message are not
distinguishable in terms of being an invasion of privacy.
[9] The language and purpose of the TCPA support the
conclusion that the use of an ATDS to make any call, regardless
of whether that call is communicated by voice or text, is
prohibited. However, we recognize that Congress could not
have spoken clearly to this issue in 1991 when the statute was
enacted. Therefore, we conclude that the statute is silent as to
whether a text message is a call within the Act.
2. The FCC’s interpretation of “call” is reasonable.
“When a statute is ambiguous or leaves key terms undefined,
a court must defer to the federal agency’s interpretation
of the statute, so long as such interpretation is reasonable.”
Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1056 (9th
Cir. 2008) (citing Metrophones Telecomms., Inc. v. Global
Crossing Telecomms., Inc., 423 F.3d 1056, 1067 (9th Cir.
2005). Because the TCPA is silent to the issue at hand, we
must defer to the agency so long as the agency’s interpretation
“is based on a permissible construction of the statute.” Chevron,
467 U.S. at 843. An agency’s interpretation of a statute
is permissible, unless “arbitrary, capricious, or manifestly
contrary to the statute.” Id. at 844.
[10] The FCC’s interpretation of 47 U.S.C. § 227(b)(1)(A)
is consistent with the dictionary’s definition of call in that it
is defined as “to communicate with or try to get into communication
with a person by telephone.” It is undisputed that text
messaging is a form of communication used primarily
between telephones. The FCC’s interpretation is also consistent
with the purpose of the TCPA—to protect the privacy
interests of telephone subscribers. Further, nothing in the
record indicates that such an interpretation is “arbitrary, capricious,
or manifestly contrary to the statute.” Accordingly, we
find that the FCC’s interpretation of the TCPA is reasonable,
and therefore afford it deference to hold that a text message
is a “call” within the TCPA.
C. Express Consent
[11] Finally, the district court erred in granting summary
judgment based upon Satterfield expressly consenting to
receiving the message. While the TCPA exempts those calls
“made with the prior express consent of the called party,” 47
U.S.C. § 227(b)(1)(A), no express consent was given in this
case. Express consent is “[c]onsent that is clearly and unmistakably
stated.” Black’s Law Dictionary 323 (8th ed. 2004).
Satterfield solely consented to receiving promotional material
from Nextones or their affiliates and brands. The term “affiliate”
carries its own, independent legal significance. “Affiliate
refers to a ‘corporation that is related to another corporation
by shareholdings or other means of control . . . .’ ” Delaware
Ins. Guar. Ass’n v. Christiana Care Health Servs., Inc., 892
A.2d 1073, 1077 (Del. 2006) (quoting Black’s Law Dictionary
59 (7th ed. 1999)). The plain and ordinary meaning of
“affiliate”4 supports this definition as “a company effectively
controlled by another or associated with others under common
ownership or control.” Webster’s Third New International
Dictionary 35 (2002). The record confirms that Nextones neither
owns nor controls Simon & Schuster, nor can Nextones
be considered a Simon & Schuster subisidiary. In fact, the
record shows no direct contractual relationship between Nextones
and Simon & Schuster.
The district court also erred in granting summary judgment
based on Satterfield’s consent to receive promotional materials
by Nextones’ brands. The district court found there was
“no dispute of fact that the promotional text message at issue
was identified with a Nextones brand.” The district court’s
conclusion is based solely on the fact that the message contained
the phrase “PwdbyNexton.”6 We do not agree. Under
this logic, any company sending a text message could simply
include “PwdbyNexton” and it would be considered a “brand”
of Nextones. Brand is not defined in the contract, therefore we
look to its plain and ordinary meaning. Brand is commonly
defined as “a class of goods identified as being the product of
a single firm or manufacturer.” Webster’s Third New International
Dictionary 268 (2002). The message was a product of
Simon & Schuster, not Nextones. Nextones’s only role in this
case was simply supplying the numbers to MIA, who in turn
supplied the numbers to ipsh!. The record also shows no
agreement between Nextones and Simon & Schuster. Therefore,
Simon & Schuster is not a Nextones Brand.
[12] Thus, Satterfield’s consent to receive promotional
material by Nextones and its affilliates and brands cannot be
read as consenting to the receipt of Simon & Schuster’s promotional
material. Accordingly, the district court erred in
granting summary judgment.
III. CONCLUSION
Summary judgment was inappropriate, because there is a
genuine issue of material fact concerning whether the equipment
utilized by Simon & Schuster has the requisite capacity
under the TCPA. The FCC has reasonably interpreted “call”
under the TCPA to encompass both voice calls and text calls.
This interpretation is reasonable and is therefore entitled to
deference. See Chevron, 467 U.S. at 843-44. Satterfield did
not consent to receive the text message. We therefore reverse
and remand.
REVERSED and REMANDED.
2The FCC’s website also indicates that the use of an ATDS may not be
used to contact numbers assigned to: “a paging service, wireless phone
service (including both voice calls and text messages), or other commercial
mobile radio service.” Unwanted Telephone Marketing Calls, http://
www.fcc.gov/cgb/consumerfacts/tcpa.html.
3The word “call” has several plain and ordinary meanings. See generally
Webster’s Third New Int’l Dictionary 317-18 (2002). Given that the
TCPA was enacted to regulate the receipt of automated telephone calls,
Congress used the word “call” to refer to an attempt to communicate by
telephone. See United States v. Amer. Trucking Assoc., 310 U.S. 534,
542-43 (1940) (when words of a statute are susceptible to more than one
meaning, courts are to interpret them in a manner which is reasonable
given the subject matter of the statute and its purpose).
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