Lozano v. Twentieth Century Fox Film Corp., et al.

Court denies defendants’ motion to dismiss plaintiff’s class action claim that defendants’ text messages, advertising the availability of new movies, violated federal telemarketing law.

Plaintiff alleged that defendants Twentieth Century Fox Film Corp. and Twentieth Century Fox Home Entertainment LLC (doing business as Foxstore.com) violated federal telemarketing law by sending several text messages to plaintiff’s cell phone advertising the availability of new movies. Defendants moved to dismiss for failure to state a claim, asserting that the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, which does not define the word “call”, does not apply to text messages. The TCPA prohibits using an automatic dialing system “to make any call . . . 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.”

The court denied defendants’ motion to dismiss. The court rejected defendants’ argument that a call is an oral communication, relying in part on a Federal Communications Commission order explicitly stating that the TCPA applies to text messages, the plain language of the statute, and legislative history. The court also rejected defendants’ argument that plaintiff’s claim should be dismissed because he did not allege that he was charged for receiving the text messages, saying that the statute does not require a plaintiff to allege being charged for the call.

Finally, the court rejected defendants’ argument that the TCPA violates the constitution on First Amendment grounds. According to the court, courts analyze restrictions on commercial speech using the four-part test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). Because defendants do not allege that the speech involved here concerns unlawful activity or is misleading, “the TCPA will survive First Amendment scrutiny if (1) there is a substantial government interest, which (2) the TCPA directly advances, so long as (3) the restriction of speech is not excessive in proportion to the interest it serves.” The court held that the TCPA serves a significant government interest of minimizing the invasion of privacy caused by unsolicited telephone communications to consumers, and reducing the number of unsolicited calls results in less invasion of privacy for consumers. Furthermore, the court held that the TCPA directly advances this interest by limiting unsolicited calls to consumers, and the fact that the TCPA only prohibits the use of equipment with the capacity to randomly dial numbers does not reflect that the statutory provision is overbroad. “Because the TCPA directly advances a legitimate government interest and is sufficiently tailored, the Court concludes that Defendants have failed to demonstrate that the TCPA violates the First Amendment.”