Gruse v. Accuweather, Inc. et al

Filing 37

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 4/30/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANDREW M. GRUSE,
Plaintiff,
v.
ACCUWEATHER, INC. and
VIBES MEDIA, LLC,
Defendants.

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Case No. 13 C 1267

MEMORANDUM ORDER
AccuWeather, Inc. ("AccuWeather") has filed a Fed. R. Civ. P. ("Rule") 12(b)(6) motion
to dismiss the putative class action brought by Andrew Gruse ("Gruse") against it and Vibes
Media, LLC ("Vibes") for the asserted violation of the Telephone Consumer Protection Act of
1991 ("Act," 47 U.S.C. § 2271). Gruse has now responded with his Memorandum in Opposition
to Defendants' Motion To Dismiss (cited "Mem."), rendering the motion ripe for decision.
Briefly put, AccuWeather seeks to emulate the salmon by swimming upstream on each of
the issues that it raises. But on every issue the jurisprudential tide runs strongly against it, for
Gruse's response cites chapter and verse to confirm the untenability of each of AccuWeather's
contentions. This Court sees no need to cite to or quote from the numerous authorities adduced
by Gruse's counsel, but will instead state its conclusions on the various issues and cite to Gruse's
Memorandum for the relevant caselaw.

1

Further citations to the Act will simply take the form "Act § --," omitting the prefatory
47 U.S.C.

At the outset a brief statement of the factual background of this action is in order.2 Until
October 7, 2012 Gruse had subscribed to AccuWeather's weather alert service, with its
communications being transmitted to his cell phone number. On that October 7 date he
responded to a text message that instructed him to "Txt X 2quit" by sending a reply that read "X,"
which Vibes acknowledged. Nonetheless the weather alert text messages continued to be
transmitted to Gruse's number -- more than 30 of them during the next four months. It is against
that backdrop that the parties have crossed legal swords.
First, Act § 227(a)(1) is unambiguous by its terms, bringing AccuWeather's transmission
system squarely within the definition of an "automatic telephone dialing system" (Mem. 3-4).
And for that purpose it suffices for AccuWeather's equipment to have the capacity defined in the
Act, without the need for the equipment's complained-of use to employ the random or sequential
calling of numbers (Mem. 3-6).
Next, AccuWeather again swims against the tide by contending that a text message is not
a "call" for purposes of the Act. AccuWeather's position that such coverage is anachronistic
because text messaging was not developed when the Act was first enacted has been rejected both
by the FCC and by the caselaw (Mem. 6-10).
Finally, AccuWeather's position that the application of Act § 227(b)(1)(A)(iii) to its text
messages would violate the First Amendment also lacks traction. Mem. 10-15 provides ample
authority to demonstrate (1) that the Act serves a significant governmental interest (2) that its

2

Throughout this memorandum order the allegations in Gruse's Complaint have been
credited, as Rule 12(b)(56) dictates. If hereafter the discovery in this case were not to bear out
those allegations, what is set out here might of course need to be revisited.
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regulation is narrowly tailored to serve that interest and (3) that ample alternative channels are
readily available for communication of the same information.
Conclusion
For the reasons stated here, AccuWeather's dismissal motion is denied. This case has
previously been set for a May 7, 2013 status hearing, at which time the litigants will be expected
to discuss the remaining pending motions as well as further proceedings in the case.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: April 30, 2013

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