In Volpe v. Caribbean Cruise Line, Inc., 2013 WL 3724858 (N.D.Ill. 2013), Judge Guzman found that the Plaintiff stated a claim under the TCPA notwithstanding defendant’s argument that plaintiff’s complaint triggered the defense of consent.
The TCPA prohibits any person from “mak[ing] any call … using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service … or any service for which the called party is charged for the call” without the “prior express consent” of the called party. 47 U.S.C. § 227(b)(1)(A) (iii). Defendant contends that plaintiff’s allegations regarding autodialer use and lack of consent are inadequate. With respect to the former, plaintiff alleges the following to support his belief that the text message was generated by an autodialer: (1) defendant posted an ad for sales agents to make “[o]utbound calls (predictive dialer) to clients who filled out a form to win a free cruise”; (2) the message he received was not personalized and was sent for marketing purposes; and (3) “[n]umerous persons” reported on various websites that they had received similar messages from defendant. ( Id. ¶¶ 10, 20, 35–36.) These allegations are sufficient, pending discovery, to suggest that the contested message was sent by an autodialer. The issue of consent is not expressly addressed in the complaint. But plaintiff alleges that defendant has a practice of autodialing cell phones of “clients who fill[ ] out a form to win a free cruise” and sent a text to him that said his cell number “ha[d] been drawn” to win a free cruise. ( Id. ¶¶ 10, 18.) These allegations strongly suggest that plaintiff consented to having defendant contact him on his cell phone. But because the complaint does not conclusively establish that plaintiff consented, and this is an issue on which defendant bears the burden of proof, it is not a basis for a Rule 12(b)(6) dismissal of the TCPA claim. See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1844 (2012) (“[S]hould any question about the consent arise, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained.”); Xechem, Inc. v. Bristol–Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.2004) (stating that “[o]rders under Rule 12(b)(6) are not appropriate responses to the invocation of defenses,” unless “plaintiff pleads [him]self out of court … [by] admit[ting] all the ingredients of an impenetrable defense”)