On Friday, the Court of Appeals for the Ninth Circuit issued its opinion in Satterfield v. Simon & Schuster, Inc. — F.3d –, 2009 WL 1708081 (9th Cir. 2009). Satterfield addressed three issues. First, was the defendant’s dialer an automatic telephone dialing system under the TCPA. The Court of Appeals held that there as a triable issue of fact, and that the district court erred in granting summary judgment.
When evaluating the issue of whether equipment is an ATDS, the statute’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 genera-tor.” 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. [P] 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 sequen-tially 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. [P] 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.
The second issue was whether SMS texting was a “call” within the TCPA. The Court of Appeals held that it was.
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.
Finally, the Court of Appeals addressed the issue of whether the Plaintiffs consented to receive the texts at issue. The Court of Appeals held that, based on the facts of case and the promotion at issue, there was a triable issue of fact because “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.”