In Kazemi v. Payless Shoesource Inc., 2010 WL 963225 (N.D.Cal. 2010), Judge Patel held that under Twombly and Iqbal, Plaintiff stated a claim under the TCPA by alleging that he received unsolicited text messages on his cellular telephone in SMS format, and that defendant’s equipment had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers, such that defendant’s equipment was an ATDS. Judge Patel explained:
Defendants argue that plaintiff has insufficiently alleged a violation of section 227(b)(1)(A) of the TCPA. That section states: ¶ “It shall be unlawful for any person within the United States … to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or pre-recorded voice … to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). ¶ Plaintiff alleges that defendants initiated unsolicited text messages to his cellular telephone using an ATDS. Complaint ¶ 33. The Ninth Circuit has held that “a text message is a ‘call’ within the meaning of the TCPA.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir.2009). While plaintiff’s allegation that defendants’ equipment “had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers,” Complaint ¶ 33, is a bare legal conclusion which the court need not accept as true, see Iqbal, 129 S.Ct. at 1049-50, plaintiff’s description of the received messages as being formatted in SMS short code licensed to defendants, scripted in an impersonal manner and sent en masse supports a reasonable inference that the text messages were sent using an ATDS. This is sufficient to meet federal pleading requirements. See Abbas v. Selling Source, LLC, No. 09 CV 3413, 2009 WL 4884471, at *3 (N.D.Ill.Dec. 14, 2009) (finding similar allegations stated a claim). ¶ Defendants also challenge the sufficiency of plaintiff’s allegations pertaining to the alleged violation of section 227(c) (5) of the TCPA. Section 227(c) directs the Federal Communications Commission to formulate regulations to protect telephone subscribers’ privacy rights, 47 U.S.C. § 227(c)(2), and authorizes the establishment of a national database to compile the numbers of telephone subscribers who object to receiving telephone solicitations, id. § 227(c)(3). Section 227(c)(5) establishes a private right of action in state court for a person who has received more than one telephone call within any twelve-month period by or on behalf of the same entity in violation of these regulations. A person may bring an action under section 227(c)(5) to enjoin the violation and to receive the greater of his or her actual monetary losses or up to $500 per violation. For willful and knowing violations, the court has discretion to treble the award amount. The regulations promulgated under section 227(c) prohibit the initiation of any telephone solicitation to a telephone subscriber who has registered his or her telephone number on the National Do Not Call Registry. 47 C.F.R. § 64.1200(c). In addition, persons or entities initiating telephone solicitations must have “instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.” Id. § 64.1200(d). ¶ Plaintiff alleges that he received at least two unsolicited text messages from defendants within the twelve month period prior to September 29, 2009, Complaint ¶ 18, and that he received at least one message from defendants after registering his mobile phone number on the National Do Not Call Registry on or about June 28, 2009, id. ¶¶ 16 & 21. These allegations support a plausible inference that defendants violated a regulation prescribed under section 227(c) of the TCPA. In addition, plaintiff alleges that he continued to receive unsolicited text messages from defendants after requesting removal of his telephone number from their calling list. Complaint ¶ 20. Taken as true, this allegation supports a plausible inference that defendants failed to institute procedures for maintaining lists of individuals who request not to receive solicitation calls in violation of a regulation prescribed under section 227(c).