District Court (Fla.) Finds TCPA/Text Class Action Properly Pleaded; Says Need Not Plead that Consumer Was Charged for Text

In Buslepp v. Improv Miami, Inc., 2012 WL 1560408 (S.D.Fla. 2012), Judge Cohn held that a TCPA text message class action stated a claim and that Plaintiff need not plead that he was actually charged for the text message.

The fact that Plaintiff does not identify the specific telephone number called or the identities of the putative class members is not fatal under Twombly and Iqbal. Plaintiff has alleged the date and content of the text message, and that numerous other persons received the same text to their cell phones. These factual allegations are sufficient to meet plaintiff’s obligation to provide the grounds of his entitlement to relief, and provide sufficient notice to Defendant to answer the complaint. At least one published district court decision, Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165, 1171 (N.D.Cal.2010), reached a similar conclusion based upon similar allegations.   Defendant also contends that the TCPA re-quires an allegation that the called party was charged. Plaintiff argues that § 227(b)(1) (A)(iii) is phrased with the disjunctive “or” separating various clauses. Thus, if a call is made to a telephone number assigned to a cellular telephone service, such as in the present action, than that allegation is sufficient to assert a claim. A plaintiff could alternatively state a claim if his telephone number is assigned to any service for which the called party is charged. The Court agrees with Plaintiff’s interpretation of this unambiguous statute. Because Plaintiff uses a cellular telephone service, he need not separately allege that he was charged for the call.  Finally, Defendant asserts that the TCPA is not suitable for class representation. Defendant relies upon a 1996 U.S. District Court decision from Penn-sylvania, Fried v. Sungard Recovery Servs., 164 F.R.D. 405 (E.D.Pa.1996). However, that decision does not appear to mention the TCPA. Defendant also asserts that other consumer protection statutes, such as the Fair Debt Collection Practices Act and the Truth in Lending Act, expressly provide for class actions and limit class recovery, while the TCPA is silent on class actions. Plaintiff contends in opposition to this argument that the United States Supreme Court has held that if a statute is silent as to class actions, the there is a presumption that it is available in all civil actions in federal court. Bateman v. American MultiCinema, Inc., 623 F.3d 708, 717 (9th Cir.2010) (quoting Califano v. Yamasaki, 442 U.S. 682, 699–700, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). In addition, the Eleventh Circuit has implicitly approved TCPA class actions by remanding a class action to the district court in Penzer v. Transportation Ins. Co., 605 F.3d 1112, 1113–14 (11th Cir.2010) (remand after the Florida Supreme Court answered a certified question that a commercial liability policy which covers “advertising injury” included coverage for alleged TCPA violations of unsolicited fax advertisements). The Court therefore concludes that Defendant’s motion should be denied in its entirety.

  The decision seems to be inconsistent with the FCC’s recent pronouncement on the TCPA, which requires that “Specifically, consistent with section 227(b)(2)(C) of the Act and the Commission’s implementing rules and orders, we do not require prior written consent for calls made to a wireless customer by his or her wireless carrier if the customer is not charged.”