Texas Judge Invokes ‘Random and Sequential’ in Defining ATDS, Dismisses TCPA Case

A District Court judge in Texas has granted a defendant’s motion to dismiss a Telephone Consumer Protection Act lawsuit, ruling that to qualify as an automated telephone dialing system, the device must randomly or sequentially generate — not just store — phone numbers.

A copy of the ruling in the case of Suttles v. Facebook can be accessed by clicking here.

This appears to be the first case within the Fifth Circuit that has sought to define an ATDS under the TCPA, and the judge in this case opted to follow what the Third, Seventh, and Eleventh Circuit Courts of Appeal have done instead of following rulings from the Ninth, Fourth, and Second Circuits.

In this case, the plaintiff received a number of unsolicited text messages from the defendant, to which he claimed he never provided his consent to receive. He filed suit, alleging the messages violated the TCPA because his phone number was registered with the National Do Not Call database and because the messages were sent to his phone without his consent using an ATDS.

First ruling that the messages did not constitute a solicitation under the TCPA, Judge Lee Yeakel of the District Court for the Western District of Texas, Austin Division, then turned to whether the defendant used an ATDS to send the text messages.

Because the plaintiff claims to have received targeted text messages sent to him and third parties, there was nothing random or sequential about the nature of the messages that were sent, Judge Yeakel wrote.

“The court appreciates the difficulty Suttles faces in knowing the type of calling system used without the benefit of discovery, but the facts as they are already known suggest that an ATDS was not used,” Judge Yeakel wrote. “The facts as described in Suttles’s pleadings do not give rise to an inference that a device with ‘random or sequential’ functionality was used, but rather a device that directly targeted specific individuals.”

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