In Satterfield v. Simon & Schuster, Inc. (June 19, 2009), the Ninth Circuit issued a consumer-oriented opinion that exemplifies the challenges faced by courts that are asked to apply existing laws to developing areas of technology. By technology standards, Satterfield is not cutting-edge material. Plaintiff Satterfield alleged a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, arising after Satterfield received an unsolicited text message. At the time of the TCPA's enactment, text messaging was not yet in use:
The precise language at issue here is what did Congress intend when it said “to make any call” under the TCPA. Utilizing the aforementioned canons of statutory construction, we look to the ordinary, contemporary, and common meaning of the verb “to call.” Webster’s defines “call” in this context as “to communicate with or try to get into communication with a person by a telephone.” Webster’s Third New International Dictionary 318 (2002). This definition suggests that by enacting the TCPA, Congress intended to regulate the use of an ATDS to communicate or try to get into communication with a person by a telephone. However, this law was enacted in 1991 when text messaging was not available.
Slip op., at 7342. With no court having addressed this question, the Ninth Circuit looked to the FCC's determination on the issue for guidance:
The TCPA makes it unlawful “to make any call” using an ATDS. 47 U.S.C. § 227(b)(1)(A). While the TCPA does not define “call,” the FCC has explicitly stated that the TCPA’s prohibition on ATDSs “encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls . . . .” In re Rules and Regulations, Report and Order, 18 FCC Rcd. 14014, 14115 Implementing the Telephone Consumer Protection Act of 1991 (July 3, 2003) (hereinafter “2003 Report and Order”). The FCC subsequently confirmed that the “prohibition on using automatic telephone dialing systems to make calls to wireless phone numbers applies to text messages (e.g., phone-to-phone SMS), as well as voice calls.” In the Matter of Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 19 FCC Rcd. 15927, 15934 (FCC August Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 12, 2004). In the Notice of Proposed Rulemaking of the CANSPAM Act, the FCC also noted “that the TCPA and Commission rules that specifically prohibit using automatic telephone dialing systems to call wireless numbers already apply to any type of call, including both voice and text calls.” Id. at 15933. Therefore, the FCC has determined that a text message falls within the meaning of “to make any call” in 47 U.S.C. § 227(b)(1)(A).
Slip op. at 7338-39. Applying the two-step test for judicial review of administrative agency interpretations of federal law set forth in Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984), the Ninth Circuit concluded that the FCC's treatment of text messaging as "calls" under the TCPA was reasonable. The Ninth Circuit reversed the trial court's grant of summary judgment. It is unclear whether this proposed class action was certified prior to the summary judgment motion.