Desio v. ComEd Company

Filing 7

MEMORANDUM Order: This memorandum order is issued sua sponte to require Desio's counsel to address a question posed by the Complaint. Plaintiff's counsel is ordered on or before February 10, 2017 to provide this Court with the citation of a case or cases that hold telephone usage of the type charged in the Complaint to be violations of the Act. Signed by the Honorable Milton I. Shadur on 1/27/2017:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PETER NICHOLAS DESIO,
Plaintiff,
v.
COMED COMPANY a/k/a
COMMONWEALTH EDISON COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 17 C 508

MEMORANDUM ORDER
This action by Peter Desio ("Desio") against ComEd Company a/k/a Commonwealth
Edison Company ("ComEd"), assertedly brought under the federal Telephone Consumer
Protection Act ("Act") 1 and the Illinois Consumer Fraud and Deceptive Business Practices Act,
has been assigned to this Court's calendar under this District Court's computerized random
assignment system. This memorandum order is issued sua sponte to require Desio's counsel to
address a question posed by the Complaint.
As Complaint ¶ 27 alleges, Act § 227(a)(1) defines an "automatic telephone dialing
system" in these terms:
[E]quipment 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.

That definition makes clear the type of telephone use on which Congress, in enacting the Act,
focused as an abuse.
1

Citations to the Act, part of Title 47 of the United States Code, will take the form "Act
§ --," omitting the prefatory "47 U.S.C."

That however is not the type of conduct that gave rise to Desio's Complaint, which
asserts a grievance stemming from his having been targeted directly by multiple calls placed on
an individualized basis because of his asserted nonpayment of a ComEd bill. This Court should
not be misunderstood as expressing any view as to the viability or nonviability of Desio's
substantive claim -- instead his counsel is ordered on or before February 10, 2017 to provide this
Court with the citation of a case or cases that hold telephone usage of the type charged in the
Complaint to be violations of the Act. 2 This Court can then promptly determine the future
course of this action.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: January 27, 2017

2

To the extent that any such citation is unpublished but is available on Westlaw,
counsel's submission should include a photocopy of the Westlaw opinion.
-2-