San Francisco, Calif. / In an unprecedented ruling, the Court of Appeals for the Ninth Circuit announced that publishing giant Simon & Schuster could be on the hook for as much as $90 million for sending unwanted text messages to tens of thousands of people.  The unanimous decision, which was announced on Friday, held that text messages were under the purview of the federal Telephone Consumer Protection Act, which makes it unlawful to make automated calls to cellular telephones.
 
The court based its ruling on a prior interpretation by the Federal Communications Commission:  “The FCC has explicitly stated that the TCPA’s prohibition...‘encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls,’” the opinion explained, “[W]e find that the FCC’s interpretation of the TCPA is reasonable, and therefore afford it deference to hold that a text message is a “call” within the TCPA.”
 
The case was brought by Laci Statterfield, whose young son received a text in the middle of the night warning him that the “next call you take may be your last.”  It turned out the text message was a promotion for the Stephen King horror book “The Cell.”  The district court initially dismissed the case, finding that the TCPA did not apply to these text messages and further that Satterfield had consented to receive text messages by downloading a free ringtone from an unrelated website.  The appellate court rejected both arguments.
 
The suit is brought on behalf of a putative class of 60,000 people, each of whom could receive a minimum of $500 and as much as $1,500 each if it is determined that the violation was intentional.
 
Satterfield is represented by John G. Jacobs of The Jacobs Law Firm, who argued the appeal, as well as his partner Bryan Kolton and Jay Edelson and Myles McGuire of KamberEdelson, LLC.  

About Jay Edelson: Edelson (http://www.kamberedelson.com/Edelson.html) has a reputation for bringing, and winning, high profile class action lawsuits.  Just last year, Edelson settled a nationwide case involving lead paint contamination with Thomas the Tank Engine & Friends Wooden Railway children’s toys that was valued at more than $30 million.  Edelson’s firm also was lead counsel in the lawsuits coming out of the 2008 contaminated pet food recall, which resulted in a settlement of more than $24 million.  Edelson testified before the U.S. Senate in connection with that case.

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