Judge Denies MTD in TCPA Case Involving Text Messages Sent by President’s Re-Election Campaign

A federal judge in Minnesota has denied a motion to dismiss filed by the re-election campaign for President Trump, after it was accused of violating the Telephone Consumer Protection Act by allegedly sending text messages using an automated telephone dialing system without first obtaining the proper consent to do so.

A copy of the ruling in the case of Pederson, Olson, and Wheeler v. Donald J. Trump For President, Inc., can be accessed by clicking here.

The plaintiffs received one or two text messages each from the campaign, inviting them to either participate at an upcoming rally in Minnesota last October or to express support for the President. The plaintiffs allege never to have provided permission to be contacted, although the defendant did say that someone filled out a form on its website with the contact information for one of the plaintiffs, which was used to send that individual the messages. That plaintiff said he never visited the site or filled out the form.

The defendant filed the motion to dismiss, arguing the plaintiffs lacked standing to sue and because the complaint failed to state a claim. Receiving an unsolicited text message is less burdensome than receiving a phone call, voicemail, or fax, the defendant argued, and only receiving one text message should not be enough to create standing.

But Judge John Tunheim of the District Court for the District of Minnesota did not see it like the defendant. “The Court agrees with
the logic of the majority of circuits and finds that a text message, while a different format that a phone call, voicemail, or fax, presents at least an equivalent level of disturbance and injury, and thus constitutes a cognizable injury under the TCPA,” he wrote in denying the motion to dismiss.

The defendant also tried to argue that it did not use an ATDS, and while the Eighth Circuit has not yet weighed in on what constitutes an ATDS, Judge Tunheim said he found the definitions of an ATDS from the Second and Ninth Circuits to be “more persuasive” than other Circuits that have weighed in on this issue.

“Under the Trump Campaign’s theory (and Eleventh Circuit precedent), software that could dial a number at random from a phonebook (imagining that there were still such things as phonebooks) would not constitute an autodialer, because a phonebook is nothing more than a list of numbers compiled by humans,” he wrote. “The Court sees no reason why software must generate numbers itself, and will not read such a limitation into the text of the statute.”

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