In Satterfield v. Simon and Schuster, 2007 WL 1839807 (N.D.Cal. 2007), Judge Wilken addressed what constitutes an “automatic telephone dialing system” and what constitutes “consent” under the TCPA.  The case arose from promotional text messages sent to cellular telephones regarding a new Steven King novel “Cell”.  The cellular telephone owners received the messages because they signed up for to download a free ringtone, which required such subscribers to also join as a Nextones Member – who were given the option of receiving promotions from Nextones affiliates and brands.


The defendants argued that the mechanical means by which they generated the text messages fell outside the TCPA’s regulation.


The TCPA defines an automatic telephone dialing system as “equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”47 U.S.C. § 227(a)(1).    Defendants contend that the undisputed facts show that the hardware and software used to send the pro-motional text messages do not fall within this definition because they are not equipment that stores, produces or calls numbers “using a random or sequential number generator.” Id. Rather, the equipment at issue sent messages to a specific, finite, non-random and non-sequential list of numbers belonging to Nextones subscribers. . . ¶  The parties’ dispute centers on the phrase “using a random or sequential number generator.”  . . ¶  As Defendants point out, although the FCC rejected the argument that predictive dialers were not automatic telephone dialing equipment merely because they used a list of numbers, it did not find that any program using a list of numbers is an automatic telephone dialing system, especially when that list was generated based on people who had agreed to receive promotions. . .    The Court concludes that the plain language of the statute does not allow the Court to divorce “to store” from the “random or sequential number generator,” as Plaintiff suggests. Rather, the phrase “random or sequential number generator” modifies “store,” “produce” and “called.” Because it is undisputed that the equipment here does not store, produce or call randomly or sequentially generated telephone numbers, the Court grants summary judgment in Defendants’ favor: the equipment at issue is not an automatic telephone dialing system under the TCPA.


The defendants also argued that the plaintiffs had consented to receive the text messages.  The district court agreed. 


The TCPA prohibits only calls made without the “prior express consent of the called party.”47 U.S.C. § 227(b)(1)(A). Defendants argue that summary judgment is warranted because Plaintiff consented to receive promotional messages, including the message at issue.


The Plaintiffs appealed to the Court of Appeals for the Ninth Circuit, and, according to PACER, oral argument was heard on February 11, 2009.