In Duguid v. Facebook, Inc., 2016 WL 1169365, at *5-6 (N.D.Cal., 2016), Judge Tygar dismissed a TCPA case against Facebook because the Plaintiff could not plead that the texts were randomly generated.
Here, as in Flores, Plaintiff’s allegations do not support the inference that the text messages he received were sent using an ATDS. Plaintiff alleges that the login notifications are designed “to alert users when their account is accessed from a new device.” Compl. ¶ 4. The text messages follow the following template: “Your Facebook account was accessed from [internet browser] at [time]. Log in for more info.” Id. ¶¶ 5, 22. Plaintiff has attached to his Complaint a webpage from Facebook’s online Help Center, which explains that users must add their mobile numbers to their accounts in order to receive login notifications by text message. Id. Ex. A. These allegations suggest that Facebook’s login notification text messages are targeted to specific phone numbers and are triggered by attempts to log in to Facebook accounts associated with those phone numbers. Although Plaintiff alleges that the operation of this system is “sloppy” because messages are sent to individuals who have never had a Facebook account, have never shared their phone number with Facebook, and/or who have requested deactivation of the login notifications, he does not suggest that Facebook sends text messages en masse to randomly or sequentially generated numbers. Id. ¶¶ 5, 8. As in Flores, “it is at least possible that Defendant utilized a system that is capable of storing or generating a random or sequential list of telephone numbers and then dialing them,” 2015 WL 4340020, at *4 (emphasis in original), but nothing in Plaintiff’s Complaint “nudge[s] [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 547. In his opposition, Plaintiff suggests that the capacity to produce or store random or sequential numbers is not a necessary feature of an ATDS, citing a 2003 order in which the Federal Communications Commission (“FCC”) concluded that a predictive dialer constitutes an ATDS. ECF No. 30 at 7-13. The FCC described a predictive dialer as “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14091-93 (2003). Courts in this district have concluded that the reasoning of the FCC’s order is not restricted to predictive dialers. See Nunes v. Twitter, Inc., No. 14-cv-02843-VC, 2014 WL 6708465, at *1 (N.D. Cal. Nov. 26, 2014) (“Although this language is not crystal clear, it appears to encompass any equipment that stores telephone numbers in a database and dials them without human intervention.”); Fields v. Mobile Messengers Am., Inc., No. 12-cv-05160-WHA, 2013 WL 6774076, at *3 (N.D. Cal. Dec. 23, 2013) (concluding that there were genuine disputes of material fact regarding whether messages were sent using an ATDS where plaintiffs alleged that the equipment used functioned similarly to a predictive dialer in that it received numbers from a computer database and dialed those numbers without human intervention). But Duguid has not alleged that Facebook uses a predictive dialer, or equipment that functions like a predictive dialer. The Complaint plainly alleges that the text messages were sent using an ATDS that “has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Compl. ¶¶ 29-30. As discussed above, the Court concludes that this claim is not plausible, and it will therefore dismiss the TCPA claims for failure to adequately allege that the login notifications were sent using an ATDS.