Taking Side on Circuit-Splitting Issue, Texas District Court Holds that Facebook Promotional Texts Were Not Sent Using ATDS
The Western District of Texas recently dismissed with prejudice a TCPA suit against Facebook brought by Colin Suttles, an individual who claimed he received thirty-two unsolicited texts from the company encouraging him to visit Facebook.com. Suttles v. Facebook, Inc., No. 1:18-CV-1004, at 2 (W.D. Tex. May 20, 2020).
Suttles claimed that Facebook violated the TCPA in two distinct ways: first, by sending unlawful “telephone solicitations” to his cell phone number that was listed on the National Do Not Call Registry, as prohibited by FCC regulation; and second, by using an automated telephone dialing system (“ATDS”) to text his phone without prior consent. Id. at 3. On Facebook’s motion to dismiss, the Western District held that Suttles’s complaint failed to state a claim upon which relief could be granted, and dismissed both of his claims accordingly. Id. at 12-13. The court’s focus on the TCPA’s plain meaning demonstrates that, in some cases, the text of the statute itself provides an effective defense against allegations of unlawful telemarketing.
The Texts Were Not Unlawful “Telephone Solicitations”
Suttles’s first claim against Facebook was that the company sent him unlawful “telephone solicitations,” as prohibited under the TCPA by way of an FCC regulation that the statute incorporates. Id. at 3; see also 47 C.F.R. § 64.1200(c) (prohibiting “telephone solicitations” to phone numbers that appear on the national do-not-call registry).
This claim failed, the court explained, because the FCC’s prohibition on “telephone solicitations” only covers calls and texts that promote a transaction between the sender and recipient. For purposes of the TCPA, a “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” Id. at 4 (citing 47 U.S.C. § 227(a)(4)). Facebook’s texts to Suttles—which merely encouraged him to visit the company’s website—did not promote or even contemplate a transaction between Suttles and Facebook. Id. at 5.
Suttles creatively argued that, although the texts did not promote a transaction involving himself, they nevertheless qualified as “telephone solicitations” because Facebook used its visitor count to encourage third parties to purchase advertising space on the company’s website. Id. at 4. The court rejected this argument, holding that a message must encourage a transaction between the recipient and the sender in order to qualify as a “telephone solicitation” under the TCPA. Id. Indeed, Suttles’s argument conceded that “Facebook was not soliciting him, as required by the plain language of the Act.” Id. (emphasis in original). “A message does not qualify as a ‘telephone solicitation’ just because it may help a company sell advertisements to third-party businesses.” Id. at 5 (citing Alleman v. Yellowbook, No. 12-CV-1300, 2013 WL 4782217, at *3, *6 (S.D. Ill. Sept. 6, 2013)).
Suttles’s Complaint Failed to Establish that Facebook Used an ATDS to Send the Texts
Suttles’s second claim was that Facebook used an ATDS to text Suttles without his consent, in violation of 47 U.S.C. § 227(b)(1)(A)(iii). Id. at 7. Suttles alleged that Facebook’s use of an ATDS was apparent because the texts he received were sent from six-digit SMS short-code numbers,1 contained general, non-personalized language, and continued to send even after Suttles asked to stop receiving texts. Id. at 10.
Suttles’s ATDS claim presented an issue to the Western District of Texas that presently divides several circuits: “whether, to qualify as an ATDS, a system must ‘produce’ the number to be called [using a random or sequential number generator] or whether it is sufficient to ‘store’ the numbers that it [automatically] calls.” Id. at 7. The courts’ disharmony on this issue revolves around the TCPA’s definition of an ATDS: “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator; and . . . to dial such numbers.” Id. (quoting 47 U.S.C. § 227(a)(1)).
Siding with the majority of circuits that have addressed this issue, the Western District held that, to qualify as an ATDS, a device must randomly or sequentially generate numbers to be called, and not just store a list of numbers that it will dial automatically. Id. at 10. The court agreed with the Third Circuit that the statute’s placement of a comma before the phrase “using a random or sequential number generator” indicates that the phrase modifies both verbs contained in the definition of an ATDS, “store” and “produce.” Id. at 9 (citing Elliot Coal Mining Co. Inc. v. Dir., Office of Workers’ Comp. Programs, 17 F.3d 616, 630 (3d Cir. 1994)). The Eleventh and Seventh Circuits have also adopted this interpretation of the ATDS definition. Id. at 9, 10 (citing Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1309 (11th Cir. 2020) and Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 464 (7th Cir. 2020), respectively).
The court rejected the Ninth Circuit’s alternative reading, which holds that an ATDS is any system with the capacity to store and automatically dial phone numbers, regardless of whether the numbers are produced using a number generator. Id. at 9-10 (citing Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018) and Duguid v. Facebook, 926 F.3d 1146, 1151 (9th Cir. 2019)).2 This construction of the statute, the court said, defies the text of the TCPA and, as the Seventh Circuit noted, would have “‘far-reaching consequences,’” making every call or text from a smartphone a potential liability. Id. at 10 (quoting Gadelhak, 950 F.3d at 466).
Having selected its interpretation, the court went on to hold that Suttles’s complaint failed to establish that Facebook used a prohibited dialing system to text him. The texts that Suttles received contained generic, non-personalized language and were sent from a six-digit SMS short-code number—both indications, Suttles argued, that the messages were sent en masse using a prohibited autodialer system. Id. However, the texts also contained a salutation addressing Suttles by name, which, despite the complaint’s other allegations, made it unlikely that an autodialer with a random number generator was used. Id. at 12. “Allegations of directly targeting specific individuals weigh against an inference that an ATDS was used,” the court explained. Id. (citing Snow v. General Electric Co., No. 18-CV-511, 2019 WL 2500407, at *4 (E.D.N.C. June 14, 2019)).
Because Suttles’s complaint failed to allege “at least enough facts to make a plausible inference that Facebook used an ATDS,” and on the contrary Suttles “pleaded the opposite of random or sequential dialing by alleging that he received targeted messages directed to him,” the court dismissed Suttles’s second claim. Id. at 11-12 (emphasis in original). By dismissing both of Suttles’s claims with prejudice, the court avoided having to address Facebook’s argument that the TCPA violates the First Amendment. Id. at 12.
The Western District’s reliance in this case on the statute’s plain language illustrates how the text of the TCPA may lend a decisive defense to the careful reader. Effective defense counsel will scrutinize the language of all relevant provisions and identify ways in which the complaint fails to describe a prohibited telemarketing practice or dialing system.
 SMS short-code numbers are five- or six-digit phone numbers used to send text messages. Suttles v. Facebook, Inc., No. 1:18-CV-1004, at 10 (W.D. Tex. May 20, 2020).
 Although not cited in this opinion, the Second Circuit last month sided with the Ninth Circuit in adopting the expansive definition of what constitutes an ATDS. See Duran v. La Boom Disco, Inc., 2020 WL 1682773 (2d Cir. Apr. 7, 2020).