September 25, 2018

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Two Texts are Apparently Enough to Allege ATDS Use as Courts Continue to Struggle with Pleading Standard in TCPA Text Cases

On June 7, 2018, a Florida district court held that Plaintiff’s putative class action allegations that Defendant twice texted his cell phone number without consent using an ATDS was sufficient to state a claim under the TCPA and overcome a 12(b)(6) motion to dismiss.  Cline v. Ultimate Fitness Grp., LLC, No. 6:18-cv-771-Orl-37GJK, 2018 U.S. Dist. LEXIS 98898 (M.D. Fla. June 7, 2018).

Plaintiff joined Defendant’s gym in 2016, but canceled his membership within a few months.  About a year later, Plaintiff received two text messages on his cell phone from Defendant and when he found out that Defendant had contracted with a company known to specialize in advertising campaigns for the fitness industry (Textmunication) that had sent text messages to other potential customers, he filed a class action suit.  The Complaint alleged that the text messages violated the TCPA because they were made for marketing purposes (unsolicited texts to Plaintiff’s cell phone advertising an offer to join a new location) and without Plaintiff’s prior express consent.

Defendant moved to dismiss Plaintiff’s Complaint on a 12(b)(6) motion, arguing that Plaintiff had failed to allege facts showing that it had used an ATDS to send the text messages to Plaintiff.  Defendant pointed out that Plaintiff had relied on the Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (the “2015 FCC Order”) to support his allegation that the equipment used by Textmunication to originate internet-to-phone text messages to wireless numbers via email or a wireless carrier’s web portal constituted an ATDS.  However, the 2015 FCC Order was not only overturned by ACA International v. FCC due to lack of clarity, Plaintiff had not alleged that the two text messages sent to him were sent by Textmunication.  In other words, the fact that Defendant contracted with a company specializing in advertising campaigns using internet-to-phone texting (Textmunication) does not support the allegation that Defendant used an ATDS to send text messages to Plaintiff in this instance.

Defendant also argued that the content of the text messages and the circumstances under which they were sent show an ATDS was not used by Defendant: (1) the content of the text messages show a conversation between a gym employee and Plaintiff on both occasions; (2) the text messages were not identical, and were specifically targeted to Plaintiff (one of them even used Plaintiff’s nickname); and (3) the text messages came from an actual phone number (the phone number belonging to the gym’s new location), not an SMS short code. 

In his opposition to Defendant’s motion to dismiss, Plaintiff argued that because Defendant contracted to do its text marketing with Textmunication, and Plaintiff knows that Textmunication’s equipment is an ATDS, Plaintiff has pled facts beyond the level of detail required regarding Defendant’s business relationship with Textmunication to raise an inference that Defendant used an ATDS to send text-based ads to potential customers like Plaintiff. 

Plaintiff further argued that even if the text messages were not sent by Textmunication (e.g., were sent manually by an employee), Defendant is not absolved of liability because liability under the TCPA does not turn on whether the text was sent by the manufacturer of the ATDS.  What matters is the capacity of the device, not whether the device was actually used.  Defendant may be held liable as long as Defendant texted Plaintiff using equipment with the capacity to store or produce random or sequentially generated numbers and to dial such numbers.

Plaintiff argued that the ACA ruling regarding the definition of an ATDS does not impact its position because (1) the ACA Court held that the FCC could not define an ATDS so broadly that every smartphone would qualify as an ATDS and Plaintiff does not allege that Defendant contacted him using a smartphone; and (2) Plaintiff has pled facts sufficient to infer that an ATDS was used under any reasonable interpretation of the statutory text, which remains unchanged after the ACA decision.

Plaintiff then argued that the fact that the text appeared to come from Defendant’s ten-digit number does not disprove the use of an ATDS because it is not certain that the text actually originated from that number.  One possibility is to cause a text to appear to have come from an actual phone number by falsifying identifying information (“spoofing”).  Even in the absence of spoofing, a short code is not necessary to plausibly allege that an ATDS was used because text messages may originate from a ten-digit phone number that was an ATDS.

The Court denied Defendant’s motion, stating that Plaintiff’s allegations that Defendant twice texted his cell phone, that Plaintiff had not provided prior express consent, and that Defendant used an ATDS was sufficient to overcome a motion to dismiss.

At this time, the pleading standard for text messages under the TCPA is unclear.  However, it is possible that the FCC may address the issue in light of the P2P Alliance Petition for clarification.

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About this Author

Associate

Tania focuses her practice on complex commercial litigation including consumer financial litigation and employment law.  She has represented employers in lawsuits involving workplace discrimination, retaliation, harassment, wrongful termination, and wage and hour claims.  

Tania has particular experience with the California Fair Employment and Housing Act and with wage and hour claims in violation of the California Labor Code. 

Tania is fluent in Farsi.

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