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Lozano v. Twentieth Century Fox Film Corp. (N.D. Ill)

Lozano v. Twentieth Century Fox Film Corp. (N.D. Ill)

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Court finds that text messages are considered "calls" under the Telephone Consumer Protection Act.
Court finds that text messages are considered "calls" under the Telephone Consumer Protection Act.

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Published by: Venkat Balasubramani on Mar 27, 2010
Copyright:Attribution Non-commercial


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VICTOR LOZANO, individually and on behalf of)a class of similarly situated individuals,))Plaintiff,))No. 09-cv-6344v.))Honorable Amy J. St. EveTWENTIETH CENTURY FOX FILM CORP., a)Delaware corporation, TWENTIETH CENTURY )FOX HOME ENTERTAINMENT LLC D/B/A)FOXSTORE.COM, a Delaware limited liability)company,))Defendants.)
AMY J. ST. EVE, District Court Judge:Before the Court is Defendants Twentieth Century Fox Film Corp. and TwentiethCentury Fox Home Entertainment LLC d/b/a Foxstore.com’s (collectively “Defendants”) Motionto Dismiss Pursuant to Rule 12(b)(6). For the following reasons, the Court denies Defendants’motion to dismiss.
For purposes of deciding Defendants’ motion to dismiss, the Court accepts the followingallegations as true. Defendants are film studios and/or retailers of movies on DVD. Defendantsmarket their products, in part, by transmitting advertisements via Short Message Services(“SMS” or “text messaging”) to consumers. Text messaging allows cellular telephonesubscribers to use their cellular telephones to send and receive short text messages, typicallylimited to 160 characters. A text message is a call that is directed to a wireless device throughthe use of the telephone number assigned to the device. Cell phone users must frequently pay
Case 1:09-cv-06344 Document 40 Filed 03/23/10 Page 1 of 21
their wireless service providers for each text message they receive, or for a cellular textmessaging plan, whether or not they authorize the receipt of a text message.On October 1, 2005, Plaintiff Victor Lozano (“Plaintiff”) received a text message fromDefendants advertising the animated film “Robots” available on DVD on Defendants’ website,FoxStore.com. Defendants sent the text message to a list of wireless numbers “using equipmentthat had the capacity to store or produce telephone numbers to be called, using a random orsequential number generator.” (R. 1-1, Complaint, ¶ 24.)
Plaintiff did not consent to receive thiswireless text message. Over the next several months, Plaintiff received additional “spam” textmessage advertisements from Defendants.Based on these allegations, Plaintiff alleges that Defendants’ conduct in sending the textmessage violates the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227(b)(1)(A)(iii). Plaintiff seeks to represent a class of consumers who received one or moreunauthorized text message advertisements from Defendants on behalf of FoxStore.
LEGAL STANDARDI.12(b)(6) Motion to Dismiss
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state aclaim upon which relief may be granted.”
 Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7 
, 570 F.3d 811, 820 (7th Cir. 2009). Pursuant to Rule 8(a)(2), a complaint mustinclude “a short and plain statement of the claim showing that the pleader is entitled to relief.”Fed.R.Civ.P. 8(a)(2). As the Seventh Circuit recently explained, this “[r]ule reflects a liberalnotice pleading regime, which is intended to ‘focus litigation on the merits of a claim rather thanon technicalities that might keep plaintiffs out of court.”
 Brooks v. Ross
, 578 F.3d 574, 580 (7th2
Case 1:09-cv-06344 Document 40 Filed 03/23/10 Page 2 of 21
Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A.
, 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d1 (2002)). This short and plain statement must “give the defendant fair notice of what the claimis and the grounds upon which it rests.”
 Bell Atlantic v. Twombly
, 550 U.S. 544, 555, 127 S.Ct.1955, 167 L.Ed.2d 929 (2007) (quoting
Conley v. Gibson
, 355 U.S. 41, 47, 78 S.Ct. 99, 2L.Ed.2d 80 (1957)). Under the federal notice pleading standards, a plaintiff’s “factualallegations must be enough to raise a right to relief above the speculative level.”
, 550U.S. at 555. Put differently, a “complaint must contain sufficient factual matter, accepted astrue, to ‘state a claim to relief that is plausible on its face.’”
 Ashcroft v. Iqbal
, 129 S.Ct. 1937,1949, 173 L. Ed. 2d 868 (2009) (quoting
, 550 U.S. at 570). “[W]hen ruling on adefendant’s motion to dismiss, a judge must accept as true all of the factual allegations containedin the complaint.”
 Erickson v. Pardus
, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081(2007);
 Justice v. Town of Cicero
, 577 F.3d 768, 771 (7th Cir. 2009) (court construes complaintin light most favorable to plaintiff drawing all reasonable inferences in plaintiff’s favor).
II.Statutory Provisions
Whether Plaintiff has stated a claim under the TCPA turns on the statutory language of 47 U.S.C. § 227(b)(1)(A)(iii). Section 227 of the TCPA, entitled “Restrictions on use of telephone equipment,” provides:(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 orsequential number generator; and(B) to dial such numbers.***(b) Restrictions on use of automated telephone equipment.3
Case 1:09-cv-06344 Document 40 Filed 03/23/10 Page 3 of 21

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