District Judge Katherine B. Forrest
Defendants allegedly used their access to consumer’s telephone numbers to enroll them in premium messaging services without authorization. The court denied defendants Wedd, Thompson and Goff dismissal of two indictment counts charging violation of 18 USC §1028A(a)(1). Giving “use,” undefined in §1028A, its ordinary meaning, the court rejected their claim that because they did not impersonate or attempt to pass themselves off as others to obtain something of value, they did not unlawfully “use” the telephone numbers for §1028A purposes. Defendants allegedly acted on behalf of their victims when they enrolled the victims in premium messaging services. The court also rejected as meritless defendants’ argument that if auto-subscribing did violate 18 USC §1028A(a)(1), the statute was unconstitutionally vague as applied. Defendants purportedly violated §1028A by obtaining victims’ phone numbers, using those numbers to subscribe victims to premium messaging services, and falsely representing to mobile phone carriers that the persons affiliated with the numbers had agreed to be billed for those services. As construed by the court, §1028A provided more than sufficient notice that such conduct violated its provisions.