In Pimental v. Google Inc., 2012 WL 691784 (N.D.Cal. 2012), Judge Rogers found that Google’s text messages to cellular telephones regarding its “disco” service pleaded facts sufficient to state a claim under the TCPA. Google’s service was described as follows:
Text messaging allows cellular telephone subscribers to send and receive short messages, usually limited to 160 or so characters on their cellular telephones. Consolidated Class Action Complaint (“Complaint”) ¶ 8. At issue here is a type of text known as a Short Message Service (“SMS”) text, which is a text message call directed to a wireless device through the use of the telephone number assigned to the device. Complaint ¶ 8. ¶ Defendants offer a group texting service known as “Disco,” in which an individual is able to create a “group” and thereby send text messages to as many as ninety-nine (99) people at once, using one common cellular telephone number provided by Defendants. Id. ¶¶ 11–14. Any person can create a “group” by adding individuals’ names and cellular telephone numbers. Id. ¶ 14. Authorization is not required to add a consumer to a “group,” but a consumer must affirmatively opt-out to stop receiving messages. Id. ¶ 15. ¶ According to the Complaint, Defendants harvest all phone numbers added by group creators and independently send their own text message advertisements promoting their Disco service and Disco mobile application. Id. ¶ 20. The moment a consumer creates a Disco texting group, but before the group creator actually tries to text anyone in the new group, the Defendants send several text messages to every member of the group instantly: “Disco is a group texting service. Standard SMS rates may apply or chat for FREE w/ our app—http:// disco.com/d …” Id. ¶¶ 21, 25, 30. Plaintiffs allege that Defendants’ text messages are advertisements for Disco’s service and mobile application. Id. ¶ 21. Plaintiffs seek to certify a class of all people who received a text message from the Defendants directly from the Disco group texting service.
Judge Rogers identified the elements of a TCPA claim, and found that Plaintiff’s had properly pleaded that Google used an ADAD.
The Telephone Consumer Protection Act of 1991 (“TCPA”) prohibits the use of automatic telephone dialing systems to send text messages to cellular telephones without the called party’s “prior express consent.” To state a TCPA cause of action, Plaintiffs must allege the following elements: that (1) a “call” was made; (2) using an “automatic telephone dialing system”; (3) the number called was assigned to a cellular telephone service; and (4) the “call” was not made with the “prior express consent” of the receiving party. 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1). Defendants challenge only the pleading sufficiency of the second element, arguing that Plaintiffs fail to sufficiently allege the use of an automatic telephone dialing system. ¶ The TCPA defines an automatic telephone dialing system (“ATDS”) as “equipment which has the capacity … to store or produce telephone numbers to be called, using a random or sequential number generator [and] to dial such numbers.” 47 U.S.C. § 227(a)(1). The Ninth Circuit has counseled that the focus must be on the equipment’s capacity to do these things, not whether the equipment actually stored, produced, or called randomly or sequentially generated telephone numbers Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009). Thus, the issue raised here is whether the allegations raise a reasonable inference that a machine with such capabilities could have been used. Defendants argue they do not. ¶ The Complaint alleges that “Defendants made unsolicited text message calls … using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Complaint ¶ 50. Defendants argue that based upon this allegation, it is not “plausible” that Defendants violated the TCPA by using an ATDS However, Plaintiffs also allege that the text messages were transmitted “en masse, using one common cellular telephone number provided by Defendants.” Id. ¶¶ 13, 51. Together with the allegation that the Defendants harvested phone numbers, this suggests that the equipment used had the capacity to store numbers and to dial such numbers. Other judges in this District have found the same amount of information plausibly suggested the use of an ATDS. See Kazemi v. Payless Shoesource, Inc., 2010 WL 963225 (N.D.Cal. March 16, 2010). Based on the foregoing, the allegations in the Complaint plausibly suggest that an ATDS was used to send the text messages.