October 8, 2019
By Email: rosemary.harold@fcc.gov
Rosemary Harold
Chief
Enforcement Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Re:

Violations of the Telephone Consumer Protection Act

Dear Ms. Harold:
Campaign for Accountability, a non-profit watchdog organization, respectfully requests
that the Federal Communications Commission (“FCC”) investigate the Judicial Crisis Network for
violating the Telephone Consumer Protection Act by sending mass robotexts from a misleading
number during the confirmation hearing of Supreme Court Justice Brett Kavanaugh in the summer
of 2018.
Background
The Judicial Crisis Network (“JCN”) is conservative legal advocacy nonprofit organized
under section 501(c)(4) of the Internal Revenue Code and headquartered in Washington D.C.
According to a class action lawsuit filed in the Southern District of Indiana, on July 10,
2018, JCN placed or caused to be placed automated text messages to cellular telephones of Indiana
residents. While it is unclear how many residents received the messages, the number was
significant enough that USA Today published an article about the campaign.1 The text message
read:
President Trump just nominated Judge Kavanaugh to be our next
Supreme Court Justice! A conservative who will uphold the
Constitution. Call Senator Donnelly at (202) 224-4814 and tell him to
confirm
Judge
Kavanaugh!
Learn
more
at
http://confirmkavanaugh.com/. Paid for by Judicial Crisis Network.2

1

Maureen Groppe, How Unsolicited Text Messages Were Sent to Hoosiers to Put Pressure on Sen. Joe Donnelly,
USA TODAY, (July 13, 2018), available at https://www.usatoday.com/story/news/politics/2018/07/13/do-textmessages-pressuring-donnelly-comply-federal-rules/780619002/.
2
See Ex. A at 4 (Complaint, Katz v. Judicial Crisis Network, No. 1:18cv02297 (S.D. Ind. July 27,
2018))(“Complaint”).

611 Pennsylvania Ave., S.E. #337 • Washington, D.C. 20003 • (202) 780-5750
campaignforaccountability.org

 Ms. Rosemary Harold
October 8, 2019
Page 2
Recipients who clicked on the hyperlink were transferred to a website maintained by JCN.
The phone number from which the text messages appeared to originate, however, belonged to the
office of former U.S. Senator Joe Donnelly (D-IN). As the complaint in the lawsuit states, “upon
calling the number from which the text was received, Senator Donnelly’s Washington D.C. office
answered, creating the impression that the text message came from Senator Donnelly’s office.”
Additionally, the plaintiffs said that they did not provide their phone numbers to JCN, and they
did not give consent to receive text messages from JCN.
Repeated Violations of TCPA Concerning Justice Kavanaugh
JCN is just one of several advocacy groups that appears to have employed robotexts to
support the nomination of Justice Kavanaugh to the Supreme Court. As CfA detailed in a previous
complaint, the anti-abortion group Susan B. Anthony List (“SBA List”) also sent mass robotexts
regarding Justice Kavanaugh’s nomination.3 According to a class action lawsuit filed in Florida,
SBA List sent similar text messages to more than two hundred thousand Floridians urging
Democratic Sen. Bill Nelson to vote for Justice Kavanaugh’s confirmation. The text message read:
Trump made his Supreme Court pick! Will Nelson stand with
Florida or extreme abortion groups? Watch Now:
https://youtube.be/jJxPCfMZOCc Reply Stop to opt out4
It appears that both JCN and SBA List, two organizations that often coordinate their advocacy
positions, used automatic dialers to send similar robotexts to Americans who did not give their
permission to receive the messages.
Legal Violations
The Telephone Consumer Protection Act (“TCPA”) prohibits any person from calling a
cellular telephone number using an automatic telephone dialing system without the recipient’s
prior express consent.5 An “automatic telephone dialing system” (“ATDS”) is defined as
equipment that has the capacity to store or produce telephone numbers to be called, using a random
or sequential number generator, and to dial such numbers.6
Based on the allegations in the complaint, it appears JCN may have used an ATDS to dial
numbers automatically, without human intervention, to make non-emergency calls to the cellular
telephones of the named plaintiffs and other members of the putative class without their prior
express consent.7 This conduct clearly violates the TCPA. The fact that JCN is a non-profit
3

Letter from Alice Huling, Counsel at Campaign for Accountability, to Rosemary Harold, Chief of the Enforcement
Bureau, FEDERAL COMMUNICATIONS COMMISSION, (June 26, 2019), available at
https://campaignforaccountability.org/wp-content/uploads/2019/06/CfA-FCC-Complaint-SBA-List-TCPA-6-2619.pdf.
4
See Ex. B at 5 (Complaint, Dkt. 1, Wijeinha v. Susan B. Anthony List, Inc., No. 1:18cv22880 (S.D. Fla. July 17,
2018)).
5
47 U.S.C. § 227(b)(1)(A).
6
47 U.S.C. § 227(a)(1).
7
See Ex. A at 3-6.

 Ms. Rosemary Harold
October 8, 2019
Page 3
organization and texts were sent as part of an advocacy campaign is immaterial. As the
Commission has noted, “[t]he TCPA’s restrictions on autodialed, artificial-voice, and prerecordedvoice calls to wireless numbers apply equally to telemarketing and informational calls.” 8 The fact
that JCN sent robotexts rather than calls is similarly irrelevant as “SMS text messages are subject
to the same consumer protections under the TCPA as voice calls.”9
Moreover, JCN appears to have deliberately mislead the recipients of the JCN text
messages regarding the sender’s identity. By making the text messages appear to have originated
from Sen. Donnelly’s office, JCN appears to have violated the TCPA’s prohibition against false
identity. The law states:
It shall be unlawful for any person within the United States, in connection with any
telecommunications service or IP-enabled voice service, to cause any caller
identification service to knowingly transmit misleading or inaccurate caller
identification information with the intent to defraud, cause harm, or wrongfully
obtain anything of value, unless such transmission is exempted pursuant to
paragraph (3)(B).10
The requisite section only exempts law enforcement. JCN, therefore, appears to have violated the
TCPA not only by using a mass dialing system but also by transmitting inaccurate caller
identification information.
Rather than go to trial, it appears JCN may have settled the lawsuit. The case was
voluntarily dismissed on December 12, 2018.11 Plaintiffs, though, had notified the court that they
had initiated discovery, which may have revealed additional nonpublic information regarding
JCN’s possible violations of TCPA.12
In addition to a private cause of action, the FCC is also authorized to take action. Any
person determined by the Commission to have violated this provision of the TCPA is subject to
forfeiture penalties.13
In 2016, the FCC issued an Enforcement Advisory titled “Robotext Consumer Protection:
Text Message Senders Must Comply with the Telephone Consumer Protection Act.”14 The
advisory explains that “[r]obotext violations are subject to enforcement by the FCC, including

8

See at at 62 (TCPA Omnibus Declaratory Ruling and Order, FEDERAL COMMUNICATIONS COMMISSION, (July 20,
2015)), available at https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order.
9
Id. at 56.
10
47 U.S.C. § 227(e)(1); 47 C.F.R. § 64.1200.
11
See Ex. C (Stipulation of Voluntary Dismissal with Prejudice, Katz v. Judicial Crisis Network, No. 1:18cv02297
(S.D. Ind. Dec. 12, 2018)).
12
See Ex. D (Unopposed Motion for Extension of Time for Filing and Briefing on Motion for Class Certification,
Katz v. Judicial Crisis Network, No. 1:18cv02297 (S.D. Ind. Nov. 28, 2018)).
13
47 U.S.C. § 227(b)(5)(A)(i).
14
See Ex. E (FCC Enforcement Advisory No. 2016-06, FEDERAL COMMUNICATIONS COMMISSION, (Nov. 18,
2016)).

 Ms. Rosemary Harold
October 8, 2019
Page 4
forfeiture penalties of up to $18,936 per violation . . .”15 Before proposing a monetary forfeiture
penalty, however, the FCC “must first issue a warning citation.”16 If a party continues to send
robotexts in violation of the TCPA or Commission rules after receiving a citation, “the FCC may
impose a monetary forfeiture penalty covering both violations that occur after the citation and
those violations that were addressed in the citation.”17
CfA has no information as to whether JCN has received a warning citation from the FCC
in the past and, therefore, whether monetary penalties are appropriate at this time. An FCC
spokesperson told USA Today in 2018 that the Commission would “of course” review any
complaints filed regarding this matter.18
Conclusion
The TCPA is intended to protect Americans from spam telephone calls and texts. JCN
appears to have sent mass robotexts without the permission of the recipients of those text messages
and mislead recipients as to the origin of the unsolicited robotexts. Additionally, JCN’s allied
organization, SBA List, also sent text messages to recipients without their permission. Given the
apparent repeated violations of the TCPA by these advocacy organizations, CfA requests that the
FCC investigate these text messages, issue warning citations, and, if the FCC has issued citations
previously impose monetary penalties. CfA further requests that the FCC monitor JCN as well as
SBA List and, if further violations are uncovered, take appropriate enforcement action.
Sincerely,

Alice C.C. Huling
Cc:

15

Kristi Thompson, Chief
Telecommunications, Consumer Division

Id. at 3.
Id. at n.18, citing 47 U.S.C. § 503(b)(5).
17
Id.
18
Maureen Groppe, How Unsolicited Text Messages Were Sent to Hoosiers to Put Pressure on Sen. Joe Donnelly,
USA TODAY, July 13, 2018, available at https://www.usatoday.com/story/news/politics/2018/07/13/do-textmessages-pressuring-donnelly-comply-federal-rules/780619002/.
16

 EXHIBIT A

Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 1 of 11 PageID #: 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARLO KATZ and MATTHEW
DOUBLESTEIN, individually and
on behalf of all others similarly
situated,
Plaintiffs,
vs.
JUDICIAL CRISIS NETWORK,
Defendant.

)
)
)
) No. 1:18-cv-02297
)
) CLASS ACTION COMPLAINT
)
) JURY TRIAL DEMANDED
)
)
)
)

CLASS ACTION COMPLAINT
Plaintiffs Marlo Katz and Matthew Doublestein, by counsel, individually and
on behalf of all others similarly situated, bring this Complaint against Defendant,
Judicial Crisis Network, for sending unsolicited text messages in violation of the
Telephone Consumer Protection Act and in violation of the Indiana Truth in Caller
ID Act and to recover statutory damages and other relief as may be appropriate
under the circumstances for all those who received such text messages.
NATURE OF THE ACTION
1.

This case arises as a result of Defendant’s mass transmission of

unsolicited text messages to Plaintiffs and Class Members using an auto-dialer.
2.

Defendant’s transmission of these text messages is in direct violation

of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, which

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 2 of 11 PageID #: 2

prohibits any person from using an automatic telephone dialing system to send an
unsolicited text message to a telephone number.
3.

Defendant’s transmission of these text messages is also in direct

violation of the Indiana Truth in Caller ID Act, Ind. Code § 24-5-14.5 (“ITCIA”),
which prohibits any person from transmitting misleading or inaccurate caller
identification information to a subscriber.
THE PARTIES
4.

Plaintiff Marlo Katz is a citizen of Indiana and is a “person” as defined

by 47 U.S.C. § 153(39).
5.

Plaintiff Matthew Doublestein is a citizen of Indiana and is a “person”

as defined by 47 U.S.C. § 153(39).
6.

The Defendant, the Judicial Crisis Network, Inc., is a Virginia

corporation with its principal office in the District of Columbia, and is a “person” as
defined by 47 U.S.C. § 153(39).
JURISDICTION AND VENUE
7.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. §

1331 because Plaintiffs’ claims arise under the TCPA, a federal statute.
8.

Personal jurisdiction exists because a substantial portion of the

wrongdoing alleged in this complaint took place in or was intentionally directed
toward the State of Indiana, and Defendant has transacted business and made or
performed contracts substantially connected with the State of Indiana.

2

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 3 of 11 PageID #: 3

9.

Venue is proper in the Southern District of Indiana pursuant to 28

U.S.C. § 1391(b)(2) because a significant and substantial portion of the events at
issue took place in this district.
FACTS
10.

As of January 2018, 95% percent of adult Americans possessed a

cellular/wireless device (“cell phone”). 1 Cell phones are inherently mobile devices,
and most people keep their cell phones with them at all times. Consequently,
businesses, political campaigns, and other organizations often seek to reach a mass
audience through cell phone communications. This includes the use of Short
Message Service (“SMS”) messages.
11.

SMS messages, more commonly known as text messages, are a popular

form of communication between individual cell phone users. SMS messages are
transmitted to a cell phone using the device’s assigned telephone number. Once the
transmission is complete, the recipient’s cell phone notifies the recipient that a
message has been received. While person-to-person communication is most common,
SMS messages can also be sent by automated systems.
12.

When sending an SMS message, it is possible to alter the information

that the recipient receives regarding the sender’s identity. Caller ID “spoofing” is
the practice of causing the telephone network to indicate to the receiver of a call or
text message that the originator of the call or text is a person or organization other
than the true originator.
1

Demographics of Mobile Device Ownership and Adoption in the United States, PEW RESEARCH CTR.
(Feb. 5, 2018), http://www.pewinternet.org/fact-sheet/mobile/.

3

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 4 of 11 PageID #: 4

13.

Under the TCPA, it is unlawful to call or text a cell phone using an

automatic telephone dialing system without the prior express consent of the
recipient. 47 U.S.C. § 227(b)(1)(A); In Re Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, Declaratory Ruling, 18 FCC Rcd 14014,
14115, para. 165 (2003).
14.

Under the ITCIA, it is unlawful to knowingly and with the intent to

defraud or cause harm to another person or to wrongfully obtain anything of value,
cause any caller identification service to transmit misleading or inaccurate caller
identification information. Ind. Code § 24-5-14.5-9.
15.

On or about July 10, 2018, the Judicial Crisis Network, using an

automatic telephone dialing system, transmitted the following text message or
similar text messages to Plaintiff Katz’s cell phone number at XXX-XXX-4442,
Plaintiff Doublestein’s cell phone number at XXX-XXX-5526, and Class Members
cell phone numbers:
President Trump just nominated Judge Kavanaugh to be our next
Supreme Court Justice! A conservative who will uphold the
Constitution. Call Senator Donnelly at (202) 224-4814 and tell him to
confirm
Judge
Cavanaugh!
Learn
more
at
http://confirmkavanaugh.com/. Paid for by Judicial Crisis Network.
16.

The following image is a screenshot of that SMS message (the

“Kavanaugh Text”):

4

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 5 of 11 PageID #: 5

17.

Senator Donnelly’s office did not send Plaintiffs or Class Members the

text messages regarding Judge Kavanaugh. However, upon calling the number from
which the text was received, Senator Donnelly’s Washington D.C. office answered,
creating the impression that the text message came from Senator Donnelly’s office.
18.

Plaintiffs and Class Members did not provide their phone numbers to

the Judicial Crisis Network or consent to receiving text messages from the Judicial
Crisis Network.
19.

The Judicial Crisis Network sent the Kavanaugh Text or substantially

the same text messages to Plaintiffs and Class Members using equipment that had

5

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 6 of 11 PageID #: 6

the capacity to store or produce telephone numbers to be called using a random or
sequential number generator, and to dial such numbers.
20.

The Judicial Crisis Network knowingly and with the intent to defraud

or cause harm to another person or to wrongfully obtain anything of value, caused a
caller

identification

service

to

transmit

misleading

or

inaccurate

caller

identification information, namely a number that when dialed connected to Senator
Donnelly’s office, with the Kavanaugh Text to the Plaintiffs and Class Members.
CLASS ACTION ALLEGATIONS
21.

Plaintiffs incorporate by reference the paragraphs set out above as if

fully set forth herein.
22.

Plaintiffs bring this action individually and as a class action on behalf

of the following proposed class (the “Class”):
All individuals to whom the Judicial Crisis Network (“Defendant”) sent the
“Kavanaugh Text” to the individuals’ cell phone by use of an automatic
dialing system without prior express consent to send those SMS messages.
23.

This action is properly maintainable as a class action under Federal

Rule of Civil Procedure 23(a) and (b)(3).
24.

The Class is so numerous that joinder of all members is impracticable.

25.

There are numerous questions of law and fact common to Plaintiffs

and Class Members, including the following:
1) Whether Defendant violated the TCPA by sending unauthorized
text messages to Plaintiffs and Class Members;

6

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 7 of 11 PageID #: 7

2) Whether Defendant sent the text messages in question using an
automatic telephone dialing system;
3) Whether Plaintiffs and Class Members are entitled to statutory
damages under the TCPA;
4) Whether Defendant’s actions were knowing or willful and, if so,
whether the Court should treble the statutory damages awarded to
Plaintiffs and Class Members; and
5) Whether Defendant violated the ITCIA by sending text messages
with misleading or inaccurate caller information; and
6) Whether Plaintiffs and Class Members are entitled to damages
under the ITCIA.
26.

Plaintiffs’ claims are typical of the claims of the Class in that the

representative Plaintiffs, like all Class Members, received the Kavanaugh Text
from the Judicial Crisis Network using an automatic telephone dialing system
without prior express consent and with misleading caller identification information.
27.

Plaintiffs will fairly and adequately protect the interests of the Class.

Plaintiffs have retained counsel who is experienced in class-action and complex
litigation. Plaintiffs have no interests that are adverse to, or in conflict with, other
members of the Class.
28.

The prosecution of separate actions by the individual Class Members

would create a risk of inconsistent or varying adjudications with respect to

7

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 8 of 11 PageID #: 8

individual Class Members, which would establish incompatible standards of
conduct for Judicial Crisis Network.
29.

The questions of law and fact common to the Class Members

predominate over any questions that may affect only individual members,
particularly because the focus of the litigation will be on the Judicial Crisis
Network’s conduct.
30.

A class action is superior to other available methods for the fair and

efficient adjudication of the controversy. Moreover, absent a class action, most Class
Members would likely find the cost of litigating their claims prohibitively high and
would therefore have no effective remedy.
COUNT I- VIOLATION OF THE TELEPHONE
CONSUMER PROTECTION ACT, 47 U.S.C. § 227, ET SEQ.
31.

Plaintiffs incorporate by reference the paragraphs above as if fully set

forth herein.
32.

The TCPA and its implementing regulations provide that it shall be

unlawful to call a wireless telephone number using any automatic telephone dialing
system without the recipient’s prior express consent. 47 U.S.C. § 227 (b)(1)(A)(iii).
33.

The TCPA defines an “automatic telephone dialing system” as

“equipment 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.” 47 U.S.C. § 227(a)(1).

8

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 9 of 11 PageID #: 9

34.

The Judicial Crisis Network sent text messages to the wireless

telephone numbers of Plaintiffs and Class Members using an automatic telephone
dialing system without their prior express consent.
35.

By sending the text messages to Plaintiffs and the Class, the Judicial

Crisis Network violated, among other laws, 47 U.S.C. § 227(b)(1)(A)(iii).
36.

As a result of the Judicial Crisis Network’s violation of the TCPA, the

Class Members, under section 227(b)(3)(B), are each entitled to a minimum of
$500.00 in damages for each such violation of the TCPA, as well as such other relief
as may be appropriate under the circumstances.
37.

Should the Court determine that the Judicial Crisis Network’s conduct

was willful or knowing, the Court may, pursuant to section 227(b)(3)(C), treble the
amount of statutory damages recoverable by Plaintiffs and the other Class
Members.
COUNT II- VIOLATION OF THE INDIANA TRUTH IN CALLER ID ACT,
Ind. Code §§ 24-5-14.5, ET SEQ.
38.

Plaintiffs incorporate by reference the paragraphs above as if fully set

forth herein.
39.

The ITCIA provides that it shall be unlawful to, “in connection with

any telecommunications service or interconnected VOIP service, knowingly and
with the intent to defraud or cause harm to another person or to wrongfully obtain
anything of value, cause any caller identification service to transmit misleading or
inaccurate caller identification information to a subscriber.” Ind. Code § 24-5-14.5-9.

9

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 10 of 11 PageID #: 10

40.

The Judicial Crisis Network sent these text messages through a

telecommunications service or VOIP service.
41.

The Judicial Crisis Network knowingly caused the caller identification

service to connect Plaintiffs to Senator Donnelly’s office, thereby transmitting
misleading and inaccurate caller identification information to a subscriber.
42.

Under the ITCIA, “any person who is aggrieved by a violation of this

chapter may bring an action” if there was intentional wrongdoing. Ind. Code § 24-514.5-13(a); Ind. Code § 24-5-14.5-14.
43.

The Judicial Crisis Network intentionally caused the transmission of

misleading or inaccurate caller identification information to a subscriber.
44.

By sending the text messages to Plaintiffs and the Class, the Judicial

Crisis Network has violated Ind. Code § 24-5-14.5-9.
PRAYER FOR RELIEF
Plaintiffs, individually and on behalf of the Class, request that the Court
enter judgment against Defendant, as follows:
1.

An order certifying this action as a class action under Federal Rule of

Civil Procedure 23(a) and (b)(3);
2.

An award to Plaintiffs and the Class of actual, statutory, and treble

damages;
3.

An award of attorneys’ fees, costs, and expenses;

4.

All other relief provided under the TCPA and ITCIA; and

10

 Case 1:18-cv-02297-JPH-MPB Document 1 Filed 07/27/18 Page 11 of 11 PageID #: 11

5.

Such other or further relief as may be appropriate under the

circumstances.
DEMAND FOR JURY TRIAL
Plaintiffs, by counsel, respectfully request a trial by jury on all issues so
triable.
Dated: July 27, 2018

Respectfully submitted,
/s/Richard E. Shevitz
Irwin B. Levin, No. 8786-49
Richard E. Shevitz, No. 12007-49
Vess A. Miller, No. 26495-53
Lynn A. Toops, No. 26386-49A
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
Fax: (317) 636-2593
ilevin@cohenandmalad.com
rshevitz@cohenandmalad.com
vmiller@cohenandmalad.com
ltoops@cohenandmalad.com
Counsel for Plaintiffs and the
Class

11

 EXHIBIT 

Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
SHEHAN WIJESINHA
individually and on behalf of all
others similarly situated,

CLASS ACTION

Plaintiff,

JURY TRIAL DEMANDED

v.
SUSAN B. ANTHONY LIST, INC.
Defendant.
__________________________________/
CLASS ACTION COMPLAINT
Plaintiff Shehan Wijesinha brings this class action against Defendant Susan B. Anthony
List, Inc. (“SBA List”) and alleges as follows upon personal knowledge as to himself and his own
acts and experiences, and, as to all other matters, upon information and belief, including
investigation conducted by his attorneys.
NATURE OF THE ACTION
1.

This is a putative class action under the Telephone Consumer Protection Act, 47 U.S.C.

§ 227 et seq., (“TCPA”), arising from Defendant’s knowing and willful violations of the TCPA.
2.

SBA List is a political group advancing pro-life laws. It is headquartered in

Washington, DC.
3.

Plaintiff and Class Members have no relationship with Defendant, and never provided

their telephone numbers to Defendant.
4.

Nevertheless, Defendant embarked on an unsolicited text message campaign, causing

Plaintiff and class members injuries, including invasion of their privacy, aggravation, annoyance,
intrusion on seclusion, trespass, and conversion.
1

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 2 of 11

5.

Through this action, Plaintiff seeks injunctive relief to halt Defendant’s illegal conduct.

Plaintiff also seeks statutory damages on behalf of herself and Class Members, as defined below, and
any other available legal or equitable remedies resulting from the illegal actions of Defendant.
JURISDICTION AND VENUE
6.

Jurisdiction is proper under 28 U.S.C. § 1331 as Plaintiff alleges violations of a federal

statute. Jurisdiction is also proper under 28 U.S.C. § 1332(d)(2) because Plaintiff alleges a national
class, which will result in at least one Class member belonging to a different state than Defendant.
Plaintiff seeks up to $1,500.00 in damages for each text message that is in violation of the TCPA, which,
when aggregated among a proposed class numbering in the tens of thousands, or more, exceeds the
$5,000,000.00 threshold for federal court jurisdiction under the Class Action Fairness Act (“CAFA”).
7.

Venue is proper in the United States District Court for the Southern District of Florida

pursuant to 28 U.S.C. §§ 1391(b) and (c) because Defendant are deemed to reside in any judicial district
in which it is subject to the court’s personal jurisdiction, and because Defendant provide and market
their services within this district thereby establishing sufficient contacts to subject it to personal
jurisdiction. Further, Defendant’s tortious conduct against Plaintiff occurred within this district and, on
information and belief, Defendant sent the same text message complained of by Plaintiff to other
individuals within this judicial district, such that some of Defendant’s acts have occurred within this
district, subjecting Defendant to jurisdiction here.
PARTIES
8.

Plaintiff is a natural person who, at all times relevant to this action, was a resident of

Miami, Florida.
9.

SBA List is a 501(c)(4) non-profit organization with its principal office located at 1200

New Hampshire Ave NW Suite 750, Washington, DC 20036. SBA List targets Florida residents with

2

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 3 of 11

its political messages.
THE TCPA
10.

The TCPA prohibits: (1) any person from calling a cellular telephone number; (2) using

an automatic telephone dialing system; (3) without the recipient’s prior express consent. 47 U.S.C. §
227(b)(1)(A).
11.

The TCPA defines an “automatic telephone dialing system” (“ATDS”) as “equipment

that 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.” 47 U.S.C. § 227(a)(1).
12.

The TCPA exists to prevent communications like the ones described within this

Complaint. See Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (2012).
13.

In an action under the TCPA, a plaintiff must show only that the defendant “called a

number assigned to a cellular telephone service using an automatic dialing system or prerecorded
voice.” Breslow v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012), aff'd, 755
F.3d 1265 (11th Cir. 2014).
14.

The Federal Communications Commission (“FCC”) is empowered to issue rules and

regulations implementing the TCPA. According to the FCC’s findings, calls in violation of the TCPA
are prohibited because, as Congress found, automated or prerecorded telephone calls are a greater
nuisance and invasion of privacy than live solicitation calls, and such calls can be costly and
inconvenient. The FCC also recognized that wireless customers are charged for incoming calls whether
they pay in advance or after the minutes are used.
15.

A defendant must demonstrate that it obtained the plaintiff’s prior express consent

before using an automatic dialing system to contact an individual. See In the Matter of Rules and
Regulaions Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7991-92 (2015)

3

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 4 of 11

(requiring express consent “for non-telemarketing and non-advertising calls”).
16.

Lastly, with respect to standing, as recently held by the United States Court of Appeals

for the Ninth Circuit:
Unsolicited [] phone calls or text messages, by their nature, invade the privacy
and disturb the solitude of their recipients. A plaintiff alleging a violation under
the TCPA “need not allege any additional harm beyond the one Congress has
identified.”
Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (quoting Spokeo,
Inc. v. Robins, 136 S. Ct. 1540 (2016)).
17.

Similarly, the United States Court of Appeals for the Second Circuit recently held that

the receipt of an unsolicited call “demonstrates more than a bare violation and satisfies the concreteinjury requirement for standing.” Leyse v. Lifetime Entm't Servs., LLC, Nos. 16-1133-cv, 16-1425cv, 2017 U.S. App. LEXIS 2607 (2d Cir. Feb. 15, 2017) (citing In re Methyl Tertiary Butyl Ether
(MTBE) Prods. Liab. Litig., 725 F.3d 65, 105 (2d Cir. 2013) ("The injury-in-fact necessary for standing
need not be large; an identifiable trifle will suffice."); Golan v. Veritas Entm't, LLC, 788 F.3d 814, 81921 (8th Cir. 2015) (holding that receipt of two brief unsolicited robocalls as voicemail messages was
sufficient to establish standing under TCPA); Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S.,
P.A., 781 F.3d 1245, 1252 (11th Cir. 2015) (holding that injury under similar TCPA provision may be
shown by one-minute occupation of fax machine)).
FACTS
18.

Defendant embarked upon an intrusive automated text messaging campaign to promote

their pro-life political agenda.
19.

Specifically, on July 13, 2018, Defendant placed, or caused to be placed, an automated

text message to Plaintiff’s cellular telephone number ending in 7557 (“7557 Number”):

4

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 5 of 11

20.

When Plaintiff clicked on the included hyperlink, it transferred him to a video produced

by and posted on YouTube by SBA List.
21.

Plaintiff received the subject text within this judicial district and, therefore, Defendant’s

violation of the TCPA occurred within this district. Upon information and belief, Defendant caused
similar texts to be placed to individuals residing within this judicial district.
22.

At no point in time did Plaintiff provide Defendant with his express consent to be

contacted by telephone using an ATDS.
23.

Plaintiff is the subscriber and sole user of the 7557 Number.

24.

The number used by Defendant (910-96) is known as a “short code,” a standard code

that enables Defendant to send SMS text messages en masse.
25.

This short code was provided to Defendant by CDYNE Corporation (“CDYNE”), a

company that hosts a text messaging platform that permitted Defendant to transmit thousands of
automated text messages without any human involvement. In fact, on its website, CDYNE boasts that
that its system can “Deliver thousands of messages in seconds[.]” (emphasis in the original). 1

1

See http://sms.cdyne.com/; (last accessed on July 17, 2018).
5

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 6 of 11

26.

The CDYNE platform utilized by Defendant has the current capacity or present ability

to generate or store random or sequential numbers or to dial sequentially or randomly at the time the
call is made, and to dial such numbers, en masse, in an automated fashion without human intervention.
27.

Further, the impersonal and generic nature of Defendant’s text message, demonstrates

that Defendant utilized an ATDS in transmitting the messages. See Jenkins v. LL Atlanta, LLC, No.
1:14-cv-2791-WSD, 2016 U.S. Dist. LEXIS 30051, at *11 (N.D. Ga. Mar. 9, 2016) (“These
assertions, combined with the generic, impersonal nature of the text message advertisements and the
use of a short code, support an inference that the text messages were sent using an ATDS.”) (citing Legg
v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1354 (S.D. Fla. 2014) (plaintiff alleged facts sufficient
to infer text messages were sent using ATDS; use of a short code and volume of mass messaging alleged
would be impractical without use of an ATDS)); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171
(N.D. Cal. 2010) (finding it "plausible" that defendants used an ATDS where messages were
advertisements written in an impersonal manner and sent from short code); Hickey v. Voxernet LLC,
887 F. Supp. 2d 1125, 1130; Robbins v. Coca-Cola Co., No. 13-CV-132-IEG NLS, 2013 U.S. Dist.
LEXIS 72725, 2013 WL 2252646, at *3 (S.D. Cal. May 22, 2013) (observing that mass messaging
would be impracticable without use of an ATDS)).
28.

Specifically, the text messages do not identify the intended recipient by name nor

provide any identifiable characteristic of the intended recipient. Instead the text message is drafted so
that it can be sent out en masse without variation.
29.

Defendant’s unsolicited text caused Plaintiff actual harm, including invasion of his

privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text
message also inconvenienced Plaintiff and caused disruption to his daily life.
CLASS ALLEGATIONS

6

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 7 of 11

PROPOSED CLASS
30.

Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of

himself and all others similarly situated.
31.

Plaintiff brings this case on behalf of the below defined Class:
All persons within the United States (1) who, within the four
years prior to the filing of this Complaint; (2) were sent a text
message; (3) from Defendant or anyone on Defendant’s behalf;
(4) to said person’s cellular telephone number; (5) using the
same equipment, or type of equipment, used to text Plaintiff’s
cellular telephone; (6) without the recipient’s prior express
consent.

32.

Defendant and their employees or agents are excluded from the Class. Plaintiff does

not know the number of members in the Class but believes the Class members number in the several
thousands, if not more.
NUMEROSITY
33.

Upon information and belief, Defendant has placed automated text messages to cellular

telephone numbers belonging to thousands of consumers throughout the United States without their
prior express consent. The members of the Class, therefore, are believed to be so numerous that joinder
of all members is impracticable.
34.

The exact number and identities of the Class members are unknown at this time and can

be ascertained only through discovery. Identification of the Class members is a matter capable of
ministerial determination from Defendant’s text message records.
COMMON QUESTIONS OF LAW AND FACT
35.

There are numerous questions of law and fact common to the Class which predominate

over any questions affecting only individual members of the Class. Among the questions of law and
fact common to the Class are:

7

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 8 of 11

(1) Whether Defendant made non-emergency text messages to Plaintiff and Class
members’ cellular telephones using an ATDS;
(2) Whether Defendant can meet their burden of showing that they obtained prior
express written consent to make such text messages;
(3) Whether Defendant’s conduct was knowing and willful;
(4) Whether Defendant are liable for damages, and the amount of such damages;
and
(5) Whether Defendant should be enjoined from such conduct in the future.
36.

The common questions in this case are capable of having common answers. If Plaintiff’s

claim that Defendant places automated and/or prerecorded telephone numbers assigned to cellular
telephone services is accurate, Plaintiff and the Class members will have identical claims capable of
being efficiently adjudicated and administered in this case.
TYPICALITY
37.

Plaintiff’s claims are typical of the claims of the Class members, as they are all based

on the same factual and legal theories.
PROTECTING THE INTERESTS OF THE CLASS MEMBERS
38.

Plaintiff is a representative who will fully and adequately assert and protect the interests

of the Class and has retained competent counsel. Accordingly, Plaintiff is an adequate representative
and will fairly and adequately protect the interests of the Class.
SUPERIORITY
39.

A class action is superior to all other available methods for the fair and efficient

adjudication of this lawsuit, because individual litigation of the claims of all members of the Class is
economically unfeasible and procedurally impracticable. While the aggregate damages sustained by the

8

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 9 of 11

Class are in the millions of dollars, the individual damages incurred by each member of the Class
resulting from Defendant’s wrongful conduct are too small to warrant the expense of individual
lawsuits. The likelihood of individual Class members prosecuting their own separate claims is remote,
and, even if every member of the Class could afford individual litigation, the court system would be
unduly burdened by individual litigation of such cases.
40.

The prosecution of separate actions by members of the Class would create a risk of

establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For example,
one court might enjoin Defendant from performing the challenged acts, whereas another may not.
Additionally, individual actions may be dispositive of the interests of the Class, although certain class
members are not parties to such actions.
COUNT I
Violations of the TCPA, 47 U.S.C. § 227(b)
(On Behalf of Plaintiff and the Class)
41.

Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein.

42.

It is a violation of the TCPA 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 … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. §
227(b)(1)(A)(iii).
43.

The TCPA defines an “automatic telephone dialing system” (hereinafter “ATDS”) as

“equipment 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.” Id. at § 227(a)(1).
44.

Defendant – or third parties directed by Defendant – used equipment having the capacity

to store telephone numbers, using a random or sequential generator, and to dial such numbers and/or to
dial numbers from a list automatically, without human intervention, to make non-emergency telephone

9

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 10 of 11

calls to the cellular telephones of Plaintiff and the other members of the Class.
45.

These text messages were sent without regard to whether Defendant had first obtained

express permission from the text messaged party to make such text messages. In fact, Defendant did not
have prior express consent to text message the cell phones of Plaintiff and the other members of the
putative Class when its text messages were made.
46.

Defendant violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone

dialing system to send non-emergency telephone text messages to the cell phones of Plaintiff and the
other members of the putative Class without their prior express consent.
47.

All Defendant are directly, jointly, or vicariously liable for each such violation of the

48.

As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff

TCPA.

and Class Members were harmed and are each entitled to a minimum of $500.00 in damages for each
violation. Plaintiff and the class are also entitled to an injunction against future calls or text messages.
WHEREFORE, Plaintiff Shehan Wijesinha, on behalf of himself and the other members
of the Class, prays for the following relief:
a.

A declaration that Defendant practices described herein violate the Telephone

Consumer Protection Act, 47 U.S.C. § 227;
b.

A declaration that Defendant violations of the Telephone Consumer Protection Act,

47 U.S.C. § 227, were willful and knowing;
c.

An injunction prohibiting Defendant from using an automatic telephone dialing

system to call or text message telephone numbers assigned to cellular telephones without the prior
express consent of the called party;
d.

An award of actual, statutory damages, and/or trebled statutory damages; and

10

 Case 1:18-cv-22880-JEM Document 1 Entered on FLSD Docket 07/17/2018 Page 11 of 11

e.

Such further and other relief the Court deems reasonable and just.
JURY DEMAND

Plaintiff and Class Members hereby demand a trial by jury.
DOCUMENT PRESERVATION DEMAND
Plaintiff demands that Defendant take affirmative steps to preserve all records, lists, electronic
databases or other itemization of telephone numbers associated with Defendant and the communication
or transmittal of telephone text messages as alleged herein.

Date: July 17, 2018

Respectfully submitted,
IJH Law
/s/ Ignacio J. Hiraldo____________
Manuel S. Hiraldo
Florida Bar No. 0056031
1200 Brickell Ave Suite 1950
Miami, FL 33131
Email: ijhiraldo@ijhlaw.com
Telephone: 786.496.4469
Counsel for Plaintiff
HIRALDO P.A.
Manuel S. Hiraldo
Florida Bar No. 030380
401 E. Las Olas Boulevard
Suite 1400
Ft. Lauderdale, Florida 33301
Email: mhiraldo@hiraldolaw.com
Telephone: 954.400.4713
Counsel for Plaintiff

11

 EXHIBIT 

Case 1:18-cv-02297-JPH-MPB Document 26 Filed 12/12/18 Page 1 of 2 PageID #: 97

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

)
MARLO KATZ and MATTHEW
DOUBLESTEIN, individually and on )
behalf of all others similarly situated,
)
) No. 1:18-cv-02297-JPH-MPB
)
Plaintiffs,
)
)
vs.
)
)
JUDICIAL CRISIS NETWORK,
)
)
Defendant.
)
STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE
Plaintiffs Marlo Katz and Matthew Doublestein, by counsel, in accordance with Federal
Rule of Civil Procedure 41(a)(1)(ii), hereby dismiss this action with prejudice, each side to bear
its own fees and costs. This stipulation has been signed by all parties who have appeared.
December 12, 2018
Dated: ________________

Respectfully submitted,
s/Vess A. Miller
Irwin B. Levin, No. 8786-49
Richard E. Shevitz, No. 12007-49
Vess A. Miller, No. 26495-53
Lynn A. Toops, No. 26386-49A
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
Fax: (317) 636-2593
ilevin@cohenandmalad.com
rshevitz@cohenandmalad.com
vmiller@cohenandmalad.com
ltoops@cohenandmalad.com
Counsel for Plaintiffs

 Case 1:18-cv-02297-JPH-MPB Document 26 Filed 12/12/18 Page 2 of 2 PageID #: 98

s/Robert B. Thornburg
Jason Brent Torchinsky
Stephen Philip Roberts
Holtzman Vogel Josefiak Torchinsky, PLLC
45 North Hill Drive, Suite 100
Warrenton, VA 20186
Phone: 540.341.8808
Fax: 540.341.8809
jtorchinsky@hvjt.law
sroberts@hvjt.law
Thomas E. Wheeler, II, 13800-49
Robert B. Thornburg, 19594-02
FROST BROWN TODD LLC
201 North Illinois Street, Suite 1900
Indianapolis, IN 46204
Phone: (317) 237-3800
Fax: (317) 237-3900
twheeler@fbtlaw.com
rthornburg@fbtlaw.com
Counsel for Defendant

0139504.0664742 4815-8125-2736v1

 EXHIBIT 

Case 1:18-cv-02297-JPH-MPB Document 24 Filed 11/28/18 Page 1 of 3 PageID #: 92

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARLO KATZ and MATTHEW
DOUBLESTEIN, individually and
on behalf of all others similarly
situated,
Plaintiffs,
vs.
JUDICIAL CRISIS NETWORK,
Defendant.

)
) No. 1:18-cv-02297-JPH-MPB
)
)
)
)
)
)
)
)
)
)

UNOPPOSED MOTION FOR EXTENSION OF TIME FOR FILING AND
BRIEFING ON MOTION FOR CLASS CERTIFICATION
Plaintiffs Marlo Katz and Matthew Doublestein, by counsel, individually and
on behalf of all others similarly situated, respectfully move the Court under Local
Rule 7-1 to extend the time for filing of, and briefing on, Plaintiffs’ motion for class
certification by approximately 30 days. In support, Plaintiffs state:
1.

Plaintiffs’ motion for class certification is currently due on December 3,

2018, Defendant’s response is due January 2, 2019, and Plaintiffs’ reply is due
February 1, 2019. See ECF No. 22 § IX.
2.

Plaintiffs have served discovery on Defendant and on a non-party

relating to the motion, and the parties have engaged in informal discovery and
discussions relating to the case.

 Case 1:18-cv-02297-JPH-MPB Document 24 Filed 11/28/18 Page 2 of 3 PageID #: 93

3.

To permit the parties additional time for discussions and completion of

any necessary discovery, Plaintiffs request that the Court extend the class
certification filing and briefing deadlines by 30 days as follows: Plaintiffs’ motion for
class certification due January 2, 2019, Defendant’s response to the motion due
February 4, 2019, and Plaintiffs’ reply due March 6, 2019.
4.

This motion is made for purposes of orderly disposition of the case and

not for purposes of unfair delay or advantage.
5.

Defendant does not oppose this extension.

WHEREFORE, Plaintiffs respectfully move the Court to extend the class
certification filing and briefing deadlines as follows: Plaintiffs’ motion for class
certification due January 2, 2019, Defendant’s response to the motion due February
4, 2019, and Plaintiffs’ reply due March 6, 2019.
Dated: November 28, 2018

Respectfully submitted,
/s/Vess A. Miller
Irwin B. Levin, No. 8786-49
Richard E. Shevitz, No. 12007-49
Vess A. Miller, No. 26495-53
Lynn A. Toops, No. 26386-49A
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
Fax: (317) 636-2593
ilevin@cohenandmalad.com
rshevitz@cohenandmalad.com
vmiller@cohenandmalad.com
ltoops@cohenandmalad.com
Counsel for Plaintiffs and the
Class
2

 Case 1:18-cv-02297-JPH-MPB Document 24 Filed 11/28/18 Page 3 of 3 PageID #: 94

CERTIFICATE OF SERVICE
I certify that on November 28, 2018 a copy of the foregoing document was
filed electronically. Notice of this filing will be sent to counsel of record by operation
of the Court’s electronic filing system.
s/Vess A. Miller
Vess A. Miller
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
Facsimile: (317) 636-2593
vmiller@cohenandmalad.com

3

 EXHIBIT 

PUBLIC NOTICE
Federal Communications Commission
445 12th St., S.W.
Washington, D.C. 20554

News Media Information 202 / 418-0500
Internet: http://www.fcc.gov
TTY: 1-888-835-5322

DA 16-1299
November 18, 2016
Enforcement Advisory No. 2016-06

FCC ENFORCEMENT ADVISORY
ROBOTEXT CONSUMER PROTECTION
TEXT MESSAGE SENDERS MUST COMPLY WITH
THE TELEPHONE CONSUMER PROTECTION ACT
The FCC’s Enforcement Bureau issues this Advisory to promote understanding of the clear limits on the use of
autodialed text messages, known as “robotexts.” The FCC is committed to protecting consumers from
harassing, intrusive, illegal, and unwanted robotexts to cell phones and other mobile devices.
The FCC has stated that the restrictions on making autodialed calls to cell phones encompass both voice calls
and texts.1 Accordingly, text messages sent to cell phones using any automatic telephone dialing system are
subject to the Telephone Consumer Protection Act of 1991 (“TCPA”).2 The term “automatic telephone dialing
system” (or “autodialer”) covers any equipment that has the capacity to store or produce numbers to be dialed
and dial them without human intervention but does not need to have the present ability to do so. 3
The TCPA places limits on autodialed calls and prerecorded- or artificial-voice4 calls to wireless numbers;
emergency numbers; guest or patient rooms at hospitals, health care facilities, elderly homes, or similar
1

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd
14014, 14115, para. 165 (2003).
2

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, 30
FCC Rcd 7961, 7978, 8017, paras. 24, 111-15 (2015) (TCPA Omnibus Declaratory Ruling and Order), pets. for review pending
sub nom. ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 10, 2015). Just as texts are a subset of “calls” under the TCPA,
“robotexts” are a subset of “robocalls.” See id. at 7964, para. 1 & n.1.
3

TCPA Omnibus Declaratory Ruling and Order, 30 FCC Rcd at 7973-74, 7975-76, paras. 14-15, 19. A robotext platform may
be deemed to have initiated the text for purposes of liability under the TCPA in certain circumstances. Id. at 7980-81, para.
30 & n.110.
4

We refer to prerecorded- or artificial-voice calls together as “prerecorded” calls.

Page 1 of 4

 establishments; and to any service for which the called party is charged for the call.5 The FCC’s corresponding
rules6 restrict the use of prerecorded-voice calls and automatic telephone dialing systems, including those that
deliver robotexts.7 The FCC’s Enforcement Bureau will rigorously enforce the important consumer protections
in the TCPA and our corresponding rules. We expect this Advisory will facilitate compliance with the law and
rules by those who initiate robotexts to mobile devices.
Restrictions on Robotexts. The TCPA prohibits autodialed calls or text messages, as well as prerecorded calls,
unless made with the prior express consent of the called party, to any telephone number assigned to a cell
phone or other mobile device (such as a pager), unless the calls or text messages are: (1) made for emergency
purposes; (2) free to the end user and have been exempted by the Commission, subject to conditions
prescribed to protect consumer privacy rights; or (3) made solely to collect debts “owed to or guaranteed by
the United States.”8
Consumer Consent. Those contending that they have prior express consent to make robotexts to mobile
devices have the burden of proving that they obtained such consent.9 This includes text messages from text
messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of
an autodialer.10 The fact that a consumer’s wireless number is in the contact list of another person’s wireless
phone does not, by itself, demonstrate consent to receive robotexts.11 Further, recipients may revoke their

5

47 U.S.C. § 227(b)(1)(A). The TCPA also places limits on unsolicited prerecorded telemarketing calls to residential
telephones. See 47 U.S.C. § 227(b)(1)(B).
6

See 47 CFR § 64.1200.

7

By this Enforcement Advisory, the FCC’s Enforcement Bureau highlights certain obligations under the TCPA and
corresponding Commission rules. Failure to receive this notice does not absolve an entity of the obligation to meet the
requirements of the Communications Act of 1934, as amended, or the Commission’s rules and orders. Companies,
individuals, and other entities should read the full text of the relevant portions of the TCPA and corresponding
Commission rules, respectively, at 47 U.S.C. § 227 and 47 CFR § 64.1200, as well as FCC orders interpreting and/or applying
those provisions.
8

See 47 U.S.C. § 227(b)(1)(A)(iii); see also 47 CFR § 64.1200(a)(1)(iii) (prohibiting such calls 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 which the called party is charged for the call”). Congress has amended Section 227 to except federal
debt collection calls and the Commission recently implemented rules related to that exception. Rules and Regulations
Implementing the Telephone Consumers Protection Act of 1991, Report and Order, FCC 16-99 (Aug. 11, 2016), 2016 WL
4250379.
9

TCPA Omnibus Declaratory Ruling and Order, 30 FCC Rcd at 7990, para. 47; see also Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling,
Declaratory Ruling, 23 FCC Rcd 559, 565, para. 10 (2008) (concluding that creditors and debt collectors claiming prior
express consent to make prerecorded-voice or autodialed calls to cell phones are responsible for demonstrating such
consent was obtained).
10

TCPA Omnibus Declaratory Ruling and Order, 30 FCC Rcd at 8020, paras. 115-16 (consumer consent required for
autodialed Internet-to-phone text messages and for text messages sent from apps “that enable entities to send text
messages to all or substantially all text-capable U.S. telephone numbers, including through the use of autodialer
applications downloaded or otherwise installed on mobile phones”).
11

Id. at 7989, para. 47.
Page 2 of 4

 consent at any time using any reasonable method.12 When a recipient of an autodialed text has revoked
consent to receive future robotexts, the text sender may immediately send one final autodialed text to confirm
the recipient’s opt-out request.13
Advertising Robotexts. Prior express written consent is required for autodialed texts that include or introduce
an advertisement except in certain limited circumstances.14 Even if a person has provided such consent,
however, his or her later opt-out request requires the sender to stop sending text advertisements.15
Robotexts to Reassigned Wireless Numbers. The Commission has determined that when a caller reasonably
relies on prior express consent to robocall or robotext a wireless number and does not discover that the
number has been reassigned to another party prior to making the call or text, the caller is not liable for the first
call or text going to the called party who did not provide consent.16 They are, however, liable for any continued
calls or text messages to a reassigned number after the initial call or text, regardless of whether or when they
learn of the reassignment.17
Enforcement. Robotext violations are subject to enforcement by the FCC, including forfeiture penalties up to
$18,936 per violation,18 and state enforcement agencies.

12

Id. at 7996, paras. 55-70. The prior express consent requirement is subject to limited exemptions granted by the
Commission for specific types of calls; all exempted of these types must result in no charge to the called party and must
satisfy specified conditions. See id. at 8027-28, para 138 (financial alerts); id. at 7986, para. 40 (collect calling agencies
setting up a billing relationship); id. at 8031-32 paras. 147-48 (certain healthcare messages); see also Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Cargo Airline Association Petition for Expedited Declaratory
Ruling, Order, 29 FCC Rcd 3432, 3439, para. 21 (2014) (certain package delivery notifications).
13

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc.
Petition for Expedited Declaratory Ruling, Declaratory Ruling, 27 FCC Rcd 15391 (2012) (setting forth certain requirements
that the one-time text must meet).
14

See 47 CFR § 64.1200(a)(2) (requiring prior express written consent for prerecorded and autodialed telephone calls that
include or introduce an advertisement or constitute telemarketing, except that consent need not be in writing for certain
health care calls and calls made by or on behalf of a tax-exempt nonprofit organization).
15

TCPA Omnibus Declaratory Ruling and Order, 30 FCC Rcd at 7996, para. 64.

16

Id. at 8006-07, para. 85 (emphasizing that the caller bears the burden of demonstrating a reasonable basis for believing
that he had consent to make the call and that he did not know about the number reassignment when making the one
allowable call).
17

Id. at 8006-07, 8009, paras. 85, 89.

18

Before proposing a monetary forfeiture penalty against a party that does not, or should not, hold an FCC license, permit,
certificate, or other authorization, the FCC must first issue a warning citation. 47 U.S.C. § 503(b)(5). If a party continues to
violate the Communications Act or the Commission’s rules after receiving a citation, the FCC may impose a monetary
forfeiture penalty covering both violations that occur after the citation and those violations that were addressed in the
citation. See S. Rep. No. 95-580, 95th Cong., 1st Sess. at 9 (1977), reprinted in 1978 U.S.C.C.A.N. 109 (If a person or entity
that has been issued a citation by the Commission thereafter engages in the conduct for which the citation of violation
was sent, the subsequent notice of apparent liability “would attach not only for the conduct occurring subsequently but
also for the conduct for which the citation was originally sent.”) (emphasis added).
Page 3 of 4

 Need More Information? Media inquiries should be directed to Will Wiquist at (202) 418-0509 or
will.wiquist@fcc.gov. Information about the Telephone Consumer Protection Act is available here:
https://www.fcc.gov/general/telemarketing-and-robocalls. For general information on the FCC, you can
contact the FCC at 1-888-CALL-FCC (1-888-225-5322) or visit our website at www.fcc.gov.
Consumer complaints. To file a complaint with the FCC about a robotext, visit consumercomplaints.fcc.gov or
call (888) CALL-FCC.
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio
format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 4180530 (voice), (202) 418-0432 (TTY).
Issued by: Chief, Enforcement Bureau

Page 4 of 4