In Kramer v. Autobytel, Inc., — F.Supp.2d —-, 2010 WL 5463116 (N.D.Cal. 2010), Judge Wilken rejected a constitutional challenge to the TCPA after the United States intervened and opposed the argument. The case involved a suit against Defendants Autobytel, Inc ., B2Mobile, LLC, and LeadClick Media, Inc., under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ( TCPA), alleging that Defendants sent Kramer and other similarly situated individuals thousands of unauthorized text messages. Two Defendants, B2Mobile and Lead-Click, moved to dismiss plaintiff’s claims. Because the motions drew into question the TCPA’s constitutional validity, the Court notified the United States of the constitutional challenge. The United States intervened in the matter, and filed a memorandum opposing Defendants’ constitutional arguments.

Judge Wilken rejected the constitutional challenge, explaining:

Defendants argue that the TCPA is constitutionally void, because it is vague as to the meaning of “prior express consent” in the context of text messaging. The statute itself does not address this precise issue, and agencies and courts purportedly have failed to provide guidance. As a result, Defendants argue that they and the mobile advertising industry in general have not received notice of the parameters for lawful text messaging, with the degree of specificity that the Constitution requires. In particular, Defendants argue that they had insufficient notice that the TCPA’ s prohibition against telephone calls from automatic dialing systems without “prior express consent” applied to text messaging. Defendants disregard ample guidance available to ensure compliance with the TCPA. Over seven years ago the Federal Communications Commission (FCC) explicitly stated that the TCPA’s prohibition on automatic telephone dialing systems “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 F.C.C.R. 14014, 14115 (July 3, 2003). In 2009, early in the time period during which Kramer allegedly received the unsolicited text messages, the Ninth Circuit held unambiguously that a text message is a “call” for purposes of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009). . . . In Satterfield, the Ninth Circuit addressed the issue of express consent, defining it as “[c]onsent that is clearly and unmistakably stated.” Id. at 955 (quoting Black’s Law Dictionary ). The court described in detail the steps that the plaintiff took to consent online to the delivery of promotional messages to her cellular phone. Id. at 949. Ultimately, the court held that the plaintiff’s consent to receive promotional materials from one entity did not constitute consent to receive marketing from Defendants in the case. Id. at 955. Thus, the court’s ruling gives valuable guidance about what the TCPA requires, and provides a common sense interpretation of “express consent.” Defendants cite Leckler v. Cashcall, Inc., 554 F.Supp. 1025 (N.D.Cal.2008), for the proposition that “prior express consent” under the TCPA is ambiguous in the context of text messaging. That decision, however, did not find ambiguity of the nature that Defendants in the present case assert. Leckler found ambiguity only as to whether the provision of a cell phone number on a loan application served as a express consent under the TCPA to receive automated calls from creditors. Leckler ‘s finding of ambiguity in this limited context does not overshadow the clarity of the FCC’s statement in 2003 that the TCPA encompasses text messaging, nor the subsequent Ninth Circuit decision in Satterfield. Furthermore, the decision was later vacated for lack of subject matter jurisdiction. Leckler v. Cashcall, Case No. C 07-04002, 2008 WL 5000528 (N.D.Cal. 2008). Because the FCC announced years ago that the TCPA encompasses text messages, and that is clearly the law in the Ninth Circuit, Defendants are obliged to examine FCC guidance and court decisions that address express consent for automated marketing under the TCPA. Though Defendants raise a number of hypothetical situations that may present challenges to discerning what the law requires, identifying “close cases” is not sufficient to invalidate a statute for vagueness under the Constitution. Williams, 553 U.S. at 305-06 (rejecting the lower court’s use of hypothetical situations to strike down a statute for vagueness, and stating, “What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.”). For these reasons, Defendants’ constitutional challenge is without merit.