Greenley’s amended complaint alleges that during a sixteen-month period from November 14, 2014, through March 16, 2016, LIUNA both negligently (Count I) and knowingly and/or willfully (Count II) made one unsolicited telephone call and sent four unsolicited text messages to his cellular telephone using an automatic telephone dialing system (ATDS), in violation of the TCPA. The unsolicited telephone call involved an automated prerecorded message, the content of which is not described in the amended complaint. The first two unsolicited text messages stated: Msg 1 of 2: This confirms yr consent to receive msgs from LIUNA & affiliates including any autodialed call & txt msg about important matters Reply STOP to quit. Msg 2 of 2: Important matters include yr contract, benefits, union operations, political & legislative matters. Reply STOP to quit. Msg & data rates may apply. The third unsolicited text message stated: “Msg from your union: Join us next week for Laborers Day @the Capitol. Reception Tues & meet w/legislators on Wed. Register at http://bit.ly/1psye0y.” Greenly replied “STOP” to this message, which prompted a fourth text message that stated: “LIUNA: You have been removed from mobile alerts. Info: firstname.lastname@example.org Removed by mistake? Reply OOPS to rejoin.” According to the amended complaint, Greenley has never been a member or prospective member of LIUNA, and he has never had or expressed any interest in being a member of LIUNA or receiving the unsolicited communications described above. The amended complaint alleges that LIUNA’s violations of the TCPA harmed Greenley by causing him to incur cellular telephone charges; invading his privacy; frustrating, distressing, harassing, and annoying him; and forcing him “and other similarly situated class members to live without the utility of their cellular phones because they were occupied by calls or text messages, causing annoyance and lost time.” LIUNA moves to dismiss the amended complaint on alternative grounds. LIUNA argues that Greenley lacks statutory and constitutional standing, the amended complaint fails to state a claim on which relief can be granted, the relief Greenley seeks is barred in whole or in part by the Noerr-Pennington doctrine and the Norris-LaGuardia Act, and the TCPA violates the First Amendment to the United States Constitution.
The reasoning in Brickman and Holt is persuasive. As those courts observed, the hypothetical less-restrictive alternatives advanced by LIUNA would not be “at least as effective in achieving the legitimate purpose” that the TCPA was enacted to serve. Reno, 521 U.S. at 874 (emphasis added). Moreover, the TCPA is limited in what it prohibits, in that it merely restricts calls made using an ATDS without first obtaining the express consent of the recipient. Brickman, 130 F. Supp. 3d at 1048 (citing 47 U.S.C. § 227(b)(1)(a)). The TCPA leaves open myriad alternative avenues for LIUNA to disseminate its messages to Greenley or anyone else. Thus, the TCPA is not over inclusive. In summary, the Court concludes that the TCPA is a content-based restriction on speech, but the TCPA survives strict scrutiny because it is narrowly tailored to serve a compelling interest. LIUNA’s facial challenge to the constitutionality of the TCPA is unavailing, and the Court denies LIUNA’s motion to dismiss on this basis.. . .
The District Court found that the Plaintiff had pleaded that he was a “called party” under the TCPA.
Thus, the plain language of the TCPA grants statutory standing to any “person or entity.” Id.; see also Swope v. Credit Mgmt., LP, No. 4:12CV832, 2013 WL 607830, at *2 (E.D. Mo. Feb. 19, 2013) (reaching same conclusion and rejecting motion to dismiss TCPA claim on statutory-standing grounds). The only relevant statutory reference to a “called party” appears in the affirmative defense provision that pertains to consent. 47 U.S.C. § 227(b)(1)(A) (providing that it is unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” (emphasis added)). This reference to “called party” does not limit the class of people who may bring a cause of action under the statute. See Swope, 2013 WL 607830, at *2. LIUNA cites two appellate decisions in support of the proposition that the TCPA limits the right to sue to “called parties.” See Breslow v. Wells Fargo Bank, 755 F.3d 1265, 1267 (11th Cir. 2014); Soppet v. Enhanced Recovery Co., 679 F.3d 637, 643 (7th Cir. 2012). But those decisions are inapposite. Although both Breslow and Soppet involved an interpretation of the statutory term “called party” in the TCPA, statutory standing was not at issue in either case. The only decision from a court in the Eighth Circuit addressing statutory standing under the TCPA rejected the argument advanced by LIUNA, as have a number of other courts. Swope, 2013 WL 607830, at *2-3; see also Page v. Regions Bank, 917 F. Supp. 2d 1214, 1219 (N.D. Ala. 2012) (collecting cases). Even if statutory standing under the TCPA were limited to a “called party,” as LIUNA argues, Greenley adequately alleges that he is a “called party.” Courts have not uniformly defined the term “called party.” Some courts have defined “called party” as the subscriber to the cellular telephone service. See, e.g., Breslow, 755 F.3d at 1267; Soppet, 679 F.3d at 643. Other courts have recognized that a “called party” may include an “actual recipient” of the communication or a “regular user” of the telephone that received the automated communication. See, e.g., Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 326 (3d Cir. 2015). The FCC defines “called party” as either the subscriber or the non-subscriber customary user of the telephone. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8000-01 (July 10, 2015). This legal question currently awaits a decision from the District of Columbia Circuit in ACA International v. FCC, No. 15-1211 (D.C. Cir.). Here, Greenley has satisfied the narrowest interpretation of “called party”—namely, that the meaning of “called party” is limited to the “subscriber” of the cellular telephone service. The amended complaint alleges that LIUNA sent the unsolicited communications to “Plaintiff’s cellular telephone number” and that Greenley answered or read those messages. In the amended complaint, Greenley also refers to the telephone records as “his.” Because LIUNA has raised a factual challenge to jurisdiction, the facts on which this Court is permitted to rely are not limited to the pleadings. Greenley has submitted a declaration stating that the cellular telephone number described in the amended complaint has been his personal number, in his name, used by him regularly, and paid for with his personal funds since at least 2006. Although LIUNA submitted public records indicating that the same number is used by a small business, Greenley’s declaration explains that he may have listed his personal cellular telephone number as a contact number with the Minnesota Secretary of State when he formed a business entity. On this record, even if statutory standing under the TCPA were limited to a “called party” defined narrowly as the “subscriber” to the cellular telephone service, Greenley satisfies this requirement. LIUNA also argues that Greenley cannot satisfy statutory standing because, if a business entity—rather than Greenley personally—is the subscriber, then Greenley has not adequately pleaded either that he falls within the zone of interests Congress intended to protect or that LIUNA’s alleged conduct proximately caused his injury. But this argument is based on the premise that the telephone number described in the amended complaint did not belong to Greenley and that Greenley did not personally answer or read the communications LIUNA sent. That premise is contrary to the allegations in the amended complaint and the facts asserted in Greenley’s declaration, as addressed above.
On May 10, 2017, the United States filed a notice of intervention and memorandum of law in support of the constitutionality of the TCPA, taking no position on LIUNA’s non-constitutional arguments. Greenley subsequently joined in the arguments advanced in the United States’ memorandum. LIUNA filed a memorandum in opposition to the United States.