. 62 47 U.S.C. § 227(b)(2)(E); 47 C.F.R. § 64.1200(a)(4)(v).

Consent, as the court has noted, is an escape route for a caller who might otherwise face TCPA liability. Mr. Aderhold asserts that car2go violated a portion of the TCPA making it unlawful “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 or an artificial or prerecorded voice” to any “cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).1 Although the court knows of no federal appeals court that has addressed the issue, district courts deem “prior express consent” to be “an affirmative defense to be raised and proved by a TCPA 1 Text messages are “calls” within the meaning of this portion of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).

They do not meet the statutory definition because they do not “store or produce numbers to be called, using a random or sequential number generator”. 47 U.S.C. § 227(a)(1)(A) (emphasis added). 24 See Letter from Mark Brennan, Counsel to Navient, to Marlene Dortch, FCC, CC Docket No. 02-278, at 1-2 (filed July 8, 2016) (Navient July 8, 2016 Ex Parte) (citing BUREAU OF THE FISCAL SERVICE, U.S. DEPARTMENT OF THE TREASURY, REPORT ON INITIAL OBSERVATIONS FROM THE FISCAL-FEDERAL STUDENT AID PILOT FOR SERVICING DEFAULTED STUDENT LOAN DEBT (2016), at https://www.treasury.gov/connect/blog/Documents/student-loan-pilot-report-july-2016.pdf); see also Letter from Debra J. Chromy, Education Finance Council, to Marlene Dortch, FCC, CC Docket No. 02-278, at 3 (filed July 18, 2016) (citing the same pilot program and statistics and also noting that, “[p]rior to contacting borrowers, Fiscal attempted to update contact information with a commercially available database.”)

Id. But the specific information (not the exact wording, font type and size) required to be conveyed in the opt-out notice is detailed in 47 U.S.C. §§ 227(b)(2)(D), (b)(2)(E) and 47 C.F.R. § 64.1200(a)(3)(iii), (a)(3)(v). Case 7:12-cv-00581-CS Document 23 Filed 07/27/12 Page 36 of 46 26 contrary is wrong and should not be followed. In sum because the Group 1 faxes contain no opt-out notice and the opt-out notices on the Group 2 faxes do not contain all of the information required under the TCPA and the regulations promulgated thereunder, Defendants are liable under the TCPA for sending both the Group 1 and Group 2 faxes, whether solicited or not, and the Complaint states a cause of action.

Turner Broadcasting, 512 U.S. at 662. For these reasons, § 227(d) does not violate the First Amendment.

The TCPA provides, in part: If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. 47 U.S.C. § 227(b)(3). The Communications Act of 1943, of which the TCPA is a part, defines “willful” as “the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision[], rule or regulation....” 47 U.S.C. § 312(f). In order to establish a “willful” or “knowing” violation of the TCPA, a plaintiff need not demonstrate that the defendant intended to violate the statute, or that it knew or should have known it was violating the statute.

Id. The entirety of Plaintiff’s allegations that Hair Club used an ATDS is the single, conclusory sentence that “Defendant used an ‘automatic telephone dialing system’ as defined by 47 U.S.C. § 227(a)(1).” (FAC, ¶ 10.)

43. Defendants made, or caused to be made, pre-recorded and/or artificial telephone calls to Plaintiff and Subclass Member’s cellular telephones in violation of 47 U.S.C. §227(b)(1)(A)(iii). 44.

Throughout this Order we refer to robocalls that are subject to the rules we enact, pursuant to the authority granted to us in the Budget Act to “restrict or limit the number and duration of calls made to a telephone number assigned to a cellular telephone service to collect a debt owed to or guaranteed by the United States,” Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)), as “federal debt collection calls.” “Robocalls” include calls made either with an automatic telephone dialing system (“autodialer”) or with a prerecorded or artificial voice. 38 Budget Act § 301(a)(1)(A) (amending 47 U.S.C. § 227(b)(1)(A)(iii)). 39 Budget Act § 301(a)(1)(A) (amending 47 U.S.C. § 227(b)(1)(A)(iii)). 40 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 8002-03, para. 78

After all, it seems safe to assume that most cellular users have their phones with them when they are at home.” Id. The 9th Circuit acknowledged that section 227(b)(1)(A) applies to all cell phones, and held that it is constitutional despite not being restricted to “residential” lines. In short, whether the Plaintiff and class members use their cell phones for “business” has no bearing on the claims and defenses in this case, and is irrelevant to the question of class certification. B. A Class Action is the Superior Means to Adjudicate this Matter.