In Zilveti v. Global Marketing Research Services, Inc., 2016 WL 613010, at *3 (N.D.Cal., 2016), Judge Chesney allowed a TCPA claim to proceed, despite intervention in the action by the United States of America.
Second, contrary to GMRS’s argument that Zilveti has failed to state a claim, the TCPA covers “noncommercial speech,” see Gomez v. Campbell-Ewald Co., 768 F.3d 871, 876 (9th Cir. 2014), and, consequently, Zilveti need not allege GMRS’s calls were made for a commercial purpose. Additionally, although, as GMRS points out, the Code of Federal Regulations exempts from the TCPA certain calls “placed to a wireless number that has been ported from wireline service,” see 47 C.F.R. § 64.1200(a)(iv), Zilveti need not plead facts to show such exemption is inapplicable, as the applicability thereof is an affirmative defense. See United States v. McGee, 993 F.2d 184, 187 (9th Cir. 1993) (holding “[the plaintiff] is not required to plead on the subject of an anticipated affirmative defense”); United States v. Dish Network, LLC, 75 F. Supp. 3d 916, 937 (C.D. Ill. 2014) (holding exemptions set forth in Code of Federal Regulations are “treated as [ ] affirmative defense[s]”). Similarly unavailing is GMRS’s reliance on a California regulation that lists, among “permissible uses” of telephone numbers provided on voter registration forms, “conducting any survey of voters in connection with any election campaign.” See Cal. Code Regs. tit. 2, § 19003. Even assuming such regulation obviates the need to obtain express consent from such registered voters, Zilveti does not allege she provided her cell phone number on a voter registration form or that the calls were made for any of the purposes identified in the regulation, nor is she required to do so, see Grant v. Capital Management Services, L.P., 449 Fed. Appx. 598, 600 n.1 (9th Cir. 2011) (holding “ ‘express consent’ is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative defense”).