District Court (Cal.) Finds Use of ATDS Adequately Pleaded under TCPA; Refuses to Apply Primary Jurisidiction Doctrine to Stay Text-Message TCPA Class Action

In Harnish v. Frankly Co., 2015 WL 1064442 (N.D.Cal. 2015), Judge Davila found that a text-message class action under the TCPA could proceed past the pleading stage. Plaintiff alleged that on May 15, 2014, he received an unsolicited text message from Defendan, where the “from” field of the text message was identified as short code “27367,” and the message read: “I want to share disappearing photos & text with you! Get it & add me:nni66franklychat.com/c–Alex …”  Plaintiff alleges that he did not consent to the receipt of this text message.  The District Court found the use of an ATDS adequately pleaded.

To assess whether the use of an ATDS has been sufficiently pled, courts have found the following allegations to be instructive: the use of a machine with the capacity to store or produce random telephone numbers, the text message was sent en masse, the appearance of a form message, the message requests the recipient to send a “YES” response, the message can be interpreted as generic or impersonal, and the message was sent from an SMS short code. See Meyer v. Bebe Stores, Inc., 2015 WL 431148, at *4 (N.D.Cal. Feb. 2, 2015) (Gonzalez Rogers, J.) (collecting cases); In re Jiffy Lube Int’l, Inc., Text Spam Litig., 847 F.Supp.2d 1253, 1260 (S.D.Cal.2012). Additionally, courts recognize “the difficulty a plaintiff faces in knowing the type of calling system used without the benefit of discovery,” thus courts may rely on details about the call to infer the use of an ATDS. Knutson v. Reply!, Inc., 2011 WL 1447756, at *1 (S.D.Cal. Apr. 13, 2011). See Meyer, 2015 WL 431148, at *4; Jordan v. Nationstar Mortg. LLC, 2014 WL 5359000, at *7 (N.D.Cal. Oct. 20, 2014) (Orrick, J.).  ¶  Here, Plaintiff alleges that Defendant sends unauthorized text message calls to the cellular telephones of consumers throughout the country. Compl. at ¶¶ 1, 15. He alleges the short code from which the message was transmitted, and the content of the message. Id. at ¶ 17. Plaintiff further alleges that the use of a short code enabled Defendant’s mass transmission of the message to a list of cellular telephone numbers. Id. at ¶ 18. Given these allegations, Plaintiff sufficiently alleges that the text message is impersonal because there is no indication that the message is specific to Plaintiff, and the message contains generic content. Moreover, Plaintiff sufficiently alleges that the message was sent en masse to a host of persons nationwide, and that it was sent from a short code. Therefore, Plaintiff has sufficiently alleged the use of an ATDS.

The District Court refused to stay the case based on the Primary Jurisdiction Doctrine in order purportedly to wait for the FCC to decide whether it’s interested in visiting the issue of what an ATDS is under the TCPA.

Considering the factors set forth by the Ninth Circuit, a stay is not warranted in this case. While the FCC may be currently considering petitions regarding the definition and scope of the ATDS, this is not an issue of first impression. The Ninth Circuit and district courts in this jurisdiction have already considered the definition of an ATDS and have allowed TCPA lawsuits to proceed. See generally Gomez v. Campbell–Ewald Co., 768 F.3d 871 (9th Cir.2014) (reviewing a TCPA summary judgment appeal); Thomas v. Taco Bell Corp., 582 Fed. Appx. 678 (9th Cir.2014) (reviewing a TCPA motion-to-dismiss appeal pertaining to theories of liability). See also Jordan, 2014 WL 5359000, at*8–10 (discussing ATDS definition and denying motion to stay); Alvarado v. Bay Area Credit Serv., 2015 WL 224950, at*2 (N.D.Cal. Jan. 16, 2015) (Conti, J.) (denying motion to stay because primary jurisdiction is not warranted); McKenna v. WhisperText, 2014 WL 4905629, at*4 (N.D.Cal. Sept. 29, 2014) (Grewal, J.) (holding that FCC’s review of petitions seeking clarification on ATDS is not sufficient to warrant a stay). Moreover, the definition of an ATDS does not involve a technical or policy consideration within the FCC’s particular field of expertise since the Ninth Circuit has already stated that the statutory language is clear and unambiguous. See Satterfield, 569 F.3d at 951. Furthermore, there is minimal danger of inconsistent rulings since the courts’ interpretation of ATDS have been consistent with the FCC, and a stay for an indeterminate amount of time would result in delay and prejudice towards Plaintiff. See Alvarado, 2015 WL 224950, at *2 (noting that there is no indication the FCC will soon decide the issues before it, thus the delay will increase prejudice towards the plaintiff).