Telephone Science Corporation v. Trading Advantage LLC et al

Filing 79

ORDER signed by the Honorable Ronald A. Guzman on 2/17/2015: For the reasons stated below, the defendants' motion to dismiss 47 is denied. Mailed notice (cjg, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Telephone Science Corp.,
v.
Trading Advantage, LLC, Larry Levin,
and John Doe 1-10,
Defendants.

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Case No: 14 C 4369

Judge Ronald A. Guzmán

ORDER
For the reasons stated below, the defendants’ motion to dismiss [47] is denied.
STATEMENT
Telephone Science Corporation (“TSC”) brings this case under the Telephone Consumer
Protection Act (“TCPA”) seeking relief for telemarketing calls defendants made to 61 phone
numbers subscribed to by TSC. Defendants move to dismiss the second amended complaint
(“SAC”) on the ground that TSC fails to allege a cause of action because the relevant section of the
TCPA does not apply to calls made to businesses.
Facts
The following well-pleaded facts are accepted as true for purposes of this motion to dismiss.
Defendants use telemarketing calls to promote: (1) the “Trading Advantage” program; (2) the TA
Trader trading platform; and (3) books by Levin. (SAC, ¶ 10.) Defendants regularly use an
automatic telephone dialing system (“ATDS”) as defined by 47 U.S.C. § 227(a)(1) to call telephone
numbers for non-emergency purposes that are assigned to a service for which the called party is
charged for calls. (Id. ¶ 11.) Defendants used a predictive dialer, which the Court construes to be
an ATDS, to call 61 telephone numbers subscribed to by Plaintiff. (Id. ¶ 21.) TSC subscribes to
a service which charges for incoming calls as well as a Voice Over Internet Phone (“VOIP”) service.
(Id. ¶¶ 28-29.) TSC does not subscribe to a traditional landline service. (Id. ¶ 30.) TSC alleges that

it is the called party of the subject telephone numbers. (Id. ¶ 31.) TSC did not request defendants
to call it and never gave any express consent or written consent to defendants for calls made. (Id.
¶¶ 32-33.)
Analysis
Defendants contend that TSC fails to state a claim because § 227(b) does not apply to calls
made to businesses. The relevant statutory text reads as follows:
It shall be unlawful for any person within the United States, . . . -(A) 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-...
(iii) to any telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or other radio common carrier
service, or any service for which the called party is charged for the call. . .
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47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added).
“The preeminent canon of statutory interpretation requires that courts presume that the
legislature says in a statute what it means and means in a statute what it says there.” Patriotic
Veterans, Inc. v. Ind., 736 F.3d 1041 (7th Cir. 2013) (internal citations, quotation marks and
alterations omitted). The plain language of the statute states that it is unlawful to make “any call
using any automatic telephone dialing system” to “any telephone number assigned to . . . any service
for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1) (emphasis added).
Because the language of the statute is unambiguous, does not expressly exclude calls made to
businesses (indeed, it uses the broad and inclusive word “any”), and TSC’s allegations fall within
the statutory prohibition of § 227(b)(1)(A)(iii), the Court rejects the defendants’ position.
Nor is the defendants’ reference to the Federal Communication Commission’s “(FCC”)

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interpretation of the statute as applying only to residential lines persuasive. Deference to agency
interpretations, as required under Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467
U.S. 837 (1984), applies only when “the statute is silent or ambiguous regarding the matter at hand.”
Brumfield v. City of Chi.,735 F.3d 619, 626 (7th Cir. 2013). Because the language of the TCPA is
not silent or ambiguous as to what types of calls it applies to, the Court need not consider the FCC’s
interpretation of the statute at this time.
For these reasons, the defendant’s motion to dismiss Count I [47] is denied.

Date: February 17, 2015

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Ronald A. Guzmán
United States District Judge

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