46 F. Supp. 3d 813
N.D. Ill.2014Background
- Plaintiff Kevin Sterk received an unsolicited promotional text (the Text) allegedly sent by defendant Path, Inc., and sued under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.
- The limited discovery and dispositive briefing focused on whether the Text was sent using an automatic telephone dialing system (ATDS) as defined by the TCPA.
- Path’s system uploads users’ phone contact lists when users opt in; Path’s agent then used automated equipment to send messages from those stored lists.
- Sterk moved for partial summary judgment that the Text was sent via an ATDS; Path cross-moved for summary judgment (including dismissal of the whole TCPA claim).
- The parties also filed cross motions to strike portions of opposing expert declarations, articles, and documents; the court resolved various evidentiary objections before deciding the ATDS issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Text was sent via an ATDS | Sterk: Path used automated equipment that dialed from a stored list without human intervention, which falls within ATDS under FCC interpretations. | Path: It lacks equipment that can generate random or sequential numbers and thus does not qualify as an ATDS. | Held: Court grants Sterk partial summary judgment — equipment that dials from stored lists (predictive/automated dialing) qualifies as an ATDS. |
| Whether user action uploading contacts defeats ATDS finding | Sterk: User clicking to upload contacts is merely list collection; the prohibited ATDS act is automated dialing without human intervention. | Path: Uploading via user clicks equals human intervention, so no ATDS. | Held: Court rejects Path’s argument; user collection does not negate automated dialing from the stored list. |
| Admissibility of Strandness declaration paragraphs about third‑party statements | Sterk: Those paragraphs are inadmissible hearsay and irrelevant to the ATDS issue. | Path: Offers them to rebut consent/relationship issues and for impeachment. | Held: Court grants Sterk’s motion to strike paragraphs 5 and 7 as inadmissible hearsay and irrelevant to the ATDS issue. |
| Admissibility of Sterk’s supporting materials (expert report, articles, Neustar documents) | Sterk: Materials are admissible or properly authenticated / fall under exceptions; expert stays within permissible bounds. | Path: Seeks to strike portions as improper expert legal opinion, hearsay, or unauthenticated. | Held: Court denies Path’s motion to strike; expert report sections, articles, and Neustar documents remain. |
Key Cases Cited
- Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009) (recognizing TCPA’s application to text messages)
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2010) (courts defer to final FCC interpretations of the TCPA)
- Legg v. Voice Media Group, Inc., 20 F. Supp. 3d 1370 (S.D. Fla. 2014) (predictive dialers that call from stored lists fall within ATDS)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (standards for agency finality)
- Village of Hoffman Estates v. Flipside, 455 U.S. 489 (U.S. 1982) (facial vagueness/overbreadth analysis)
- Wisconsin Right to Life, Inc. v. Borland, 751 F.3d 804 (7th Cir. 2014) (analysis on whether regulation reaches substantial protected speech)