Three cases last week really drive home the importance of Facebook –at least as applied to text message communication. First, in Laguardia, Case No. 2:20-cv-2311, 2021 U.S. Dist. LEXIS 170704 (S.D. Oh. September 9, 2021) the court granted summary judgment to Defendant holding squarely that only the use of a R&SNG to generate phone numbers triggers the TCPA’s ATDS definition under Facebook. The defendant in that case was using a number generator to create IDs to track unique texts for campaign purposes. Despite the fact that the system was plainly using a number generator in connection with texts, the Court had no trouble distinguishing between that sort of number generation and the generation of telephone numbers to be dialed. As the system was not generating telephone numbers, the text messages being sent to lists of customers were simply not sent using an ATDS.
Next, in Brickman, Case No. 16-cv-00751-WHO, 2021 U.S. Dist. LEXIS 175700 (N.D. Cal. September 15, 2021) the court denied a motion for leave to file a second amended complaint. At issue in that case were birthday text messages being sent automatically by a popular social media site. (I wonder which one.) The Court determined that since the texts were being sent based upon an occurrence—i.e. a birthday—they were not being sent using a R&SNG. The Court had no trouble reaching this conclusion despite the Plaintiff’s arguments that the order in which texts were being sent was determined via a random or sequential process. As the numbers receiving the texts were not randomly or sequentially generated, even if the text sequence were determined using an R&SNG is not enough—only the use of an R&SNG to generate phone numbers is sufficient to trigger TCPA.
Lastly, in Jovanovic v. Srp Invs. Llc, No. CV-21-00393-PHX-JJT, 2021 U.S. Dist. LEXIS 175631 (D. Az. September 14, 2021) the court granted a motion to dismiss an ATDS claim holding that the receipt of a personalized text message from a long code is inconsistent with ATDS usage. With 10DLC registration around the corner the use of long code will continue to be a popular communication channel by legitimate businesses—one that a court in Arizona just blessed as potentially TCPA-proof.
I’ll note that these are just three district court-level opinions—and not binding precedent—but they basically prove I was right all along. Text communication—particularly triggered texts of the sort used in Brickman—is the safest post-Facebook TCPA communication channel (along with human selection dialers.) To read more click here.