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Jackson v. Caribbean Cruise Line, Inc.

United States District Court, E.D. New York

November 19, 2014

BRIAN M. JACKSON, individually and on behalf of a class, Plaintiff,
v.
CARIBBEAN CRUISE LINE, INC., ADSOURCE MARKETING LTD, and DOES 1-10, Defendants.

MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, Magistrate Judge.

I. PRELIMINARY STATEMENT

Plaintiff Brian M. Jackson ("Plaintiff") brings this action, individually and on behalf of a class, against Defendants Caribbean Cruise Line, Inc. ("CCL"), Adsource Marketing LTD ("Adsource"), and "DOES 1-10" pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Plaintiff alleges that Adsource sent an unsolicited text message to Plaintiff on his cellular telephone on behalf of CCL, in violation of the TCPA.

Before the Court is Defendant CCL's motion to produce certain specified documents from non-party CSC Holdings, LLC ("Cablevision") pursuant to the Cable Communications Policy Act of 1984 (the "Cable Act"), 47 U.S.C. § 551(c)(2)(B), and Rule 26 of the Federal Rules of Civil Procedure. After serving a subpoena on Cablevision, CCL was advised that Cablevision is prohibited from disclosing personally identifiable information of any of its subscribers ( i.e., Plaintiff) in the absence of a Court Order. In the present motion, CCL seeks the issuance of a Court Order permitting the release of non-party subscriber information from Cablevision in order to discover the circumstances underlying the March 14, 2014 text message at issue in this case. Plaintiff does not oppose the motion. For the reasons set forth below, Defendant CCL's motion is hereby GRANTED, in part, and DENIED, in part.

II. BACKGROUND

A. The Second Amended Complaint

On March 25, 2014, Plaintiff received an unsolicited text message call on his cellular telephone from nixcyzqienkm@mytextalerts.net. See Second Amended Complaint ("Compl.") ¶ 9. The text message read "Enjoy your Two Cruise Tickets! Call to claim 954 507 7628." Id. ¶ 10. According to Plaintiff's counsel, Defendant Adsource sent the text message call to Plaintiff's cellular telephone on behalf of Defendant CCL. Id. ¶ 12. Plaintiff asserts that the call was made on a mass basis using an automated telephone dialing system and that the equipment used to make the subject text message call had the capacity to store or produce telephone numbers to be called, using a random number, or sequential, number generator. Id. ¶¶ 13-14. Plaintiff states that the call lacked any personalization and was made solely for telemarketing purposes. Id. ¶¶ 15-17. According to Plaintiff, a text message constitutes a "call" under the TCPA, which, in turn, prohibits unsolicited text message calls to cellular phones. Id. ¶¶ 29-30.

Defendant CCL was allegedly responsible for making or causing the text message calls to be made. Id. ¶ 19. As set forth in the amended pleading, CCL contracted with Adsource to make text message calls to cellular telephone numbers. Id. ¶ 20. The Plaintiff alleges that Adsource sent the text message calls on behalf of and at the direction of CCL. Id. ¶ 21. Plaintiff claims CCL was aware that Adsource was making text message calls to consumers to promote its cruise line. Id. ¶ 22. Plaintiff claims that he has no prior relationship with CCL and did not authorize the calls. Id. ¶ 23. According to Plaintiff, the text message calls were made as part of a mass broadcasting. Id. ¶ 24. Plaintiff maintains that there is no reasonable means for the recipients of CCL's texts to stop incoming messages. Id. ¶ 27. Finally, Plaintiff states that there is a significant likelihood that he will be called again on behalf of CCL. Id. ¶ 28.

B. Relevant Procedural History

The parties participated in a Telephone Status Conference with the Court on August 6, 2014. See DE 39. In pertinent part, the Court noted that on July 23, 2014, Defendant CCL filed the instant motion to compel non-party Cablevision to produce certain specified documents, pursuant to 47 U.S.C. § 551(c)(2)(b). Id. ¶ 1. Upon the Court's inquiry, Plaintiff's counsel confirmed that he will not be filing any opposition to CCL's motion. Id. Accordingly, the Court deemed CCL's July 23, 2014 motion fully submitted. Id.

C. The Instant Motion for Court Authorization

On July 23, 2014, CCL filed the instant motion, pursuant to 47 U.S.C. § 551(c)(2)(b), seeking the release of subscriber information from non-party Cablevision. See Def. CCL's Mot. For Court's Authorization Pursuant to 47 U.S.C. Section 551(c)(2)(b) and Memorandum in Supp. ("CCL Mot.") [DE 37]. CCL served Cablevision with a subpoena, dated July 7, 2014, seeking to "obtain necessary information in developing its case, specifically relating to the issue of Plaintiff's consent to receive SMS messages similar to the one he allegedly received." Id. at 2; see also Jul. 7, 2014 Subpoena to Produce Documents, Information, or Objections or to Permit Inspection of Premises in a Civil Action annexed to the CCL Mot. as Ex. "A" (the "Subpoena") [DE 37-1]. In the Subpoena, CCL requested the following three categories of documents: (1) Internet Protocol ("IP") Address Log Records for 160.150.107.5; (2) subscriber information for telephone numbers (516) 319-3726 and (516) 922-1576; and (3) e-mail account information for mtmacchio@optonline.net. See id.

On July 9, 2014, Cablevision sent CCL a letter in response to the Subpoena. See Jul. 9, 2014 Ltr. from Cablevision to CCL [DE 37-2]. In its letter, Cablevision explained that under the Cable Act, § 551(c)(2)(B), cable operators are prohibited from disclosure of "subscriber personally identifiable information" absent a Court Order. Id. at 1. Cablevision explained that such Court Order must including the following information: (1) the IP or e-mail address information sought; (2) inbound or outbound call detail records of the telephone number; and (3) a direction to Cablevision to disclose the subscriber's personally identifiable information pursuant to 47 U.S.C. § 551(c)(2)(B). Id. Further, in accordance with the Cable Act, Cablevision requires advance notice of a Court Order to its subscribers. Id. The Court Order must allow Cablevision at least 5 additional business days to serve notice upon the subscriber and to comply with the Order. Id. Finally, Cablevision informed counsel for CCL that it reserves the right to seek reimbursement of the reasonable costs associated with the production of the records. Id. at 2. Moreover, Cablevision explained that the issuance of a Court Order does not guarantee the retrieval of the requested information. Id.

In the instant motion, CCL seeks an order from this Court, pursuant to 47 U.S.C. § 551(c)(2)(B), authorizing Cablevision to release the identifying personal information related to: (1) IP Address 160.150.107.5 for March 14, 2014 (between 12:50-1:00 a.m. and p.m. E.S.T.); (2) telephone numbers (516) 319-3726 and (516) 922-1576; and (3) email address mtmacchio@optonline.net. Counsel for Plaintiff does not oppose the ...


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