In Robbins v. Coca-Cola-Company, 2013 WL 2252646 (S.D.Cal. 2013), Judge Gonzalez found that the Plaintiffs stated a TCPA claim against Coke for SMS text messages sent promoting Coke products.
“Whether Plaintiffs gave the required prior express consent is an affirmative defense to be raised and proved by a TCPA defendant, however, and is not an element of Plaintiffs’ TCPA claim.” Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364, at *3 (S.D.Cal. June 11, 2012). Thus, to plead a TCPA claim, Plaintiffs need only allege two elements: (1) a call to a cellular telephone; (2) via an ATDS. See id. (“The TCPA prohibits persons from making calls using an automatic telephone dialing system.”) (internal quotation omitted). ¶ A. A Call to a Cellular Phone. A “text message is a ‘call’ within the TCPA.” Satterfield, 569 F.3d at 954. Plaintiffs allege numerous text messages to their cellular phones. [Doc. No. 1 at 12–17.] Defendant contends these allegations fail to allege a call under the TCPA because they fail to specify the precise time, content, and context of the subject text messages. [See Doc. No. 7 at 3–5.] But the language of the TCPA makes no reference to the time, content, sequence, or volume of calls or messages as a prerequisite to liability; rather, the wording of the statute is expansive and content neutral. See Satterfield, 569 F.3d at 955 (finding a single text message actionable); see also Melingonis v. Network Communs. Int’l Corp., 2010 WL 4918979, at *1 (S.D.Cal. Nov.29, 2010) (“We note that [the TCPA] applies regardless of the content of the call.”) (internal quo-tation omitted); Robinson v. Midland Funding, LLC, 2011 WL 1434919, at *3 (S.D.Cal. April 13, 2011) (“the federal notice pleading standards do not require a plaintiff to allege details … about the [call’s] time and context.”). To allege a call under the TCPA, Plaintiffs need only allege text messages to their cellular phones by Defendant. See Satterfield, 569 F.3d at 954. Plaintiffs here have done so and thus sufficiently allege calls under the TCPA. ¶ B. Via an ATDS ¶ ATDS is defined as ‘equipment which has the capacity-(A) to store or produce telephone num-bers to be called, using a random or sequential number generator; and (B) to dial such numbers.’ ” Gragg v. Orange Cab Co., Inc., 2013 WL 195466, at *2 (W.D.Wash. Jan.17, 2013) (quoting 47 U.S.C. § 227(a)(1)). “Plaintiffs alleging the use of a particular type of equipment under the TCPA are generally required to rely on indirect allegations, such as the content of the message, the context in which it was received, and the existence of similar messages, to raise an inference that an automated dialer was utilized. Prior to the initiation of discovery, courts cannot expect more.” Id. at *2 n. 3; see also Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1130 (W.D.Wash. Aug.13, 2012) (“allegation[s] regarding the generic content and automatic generation of the message [are] sufficient to infer the use of an ATDS.”). “The issue is whether the allegations of the complaint, taken as a whole and including the nature of the communication, give rise to a plausible belief that the message was sent using an ATDS.” Gragg, 2013 WL 195466, at *2 n. 3 ¶ Here, Plaintiffs allege numerous text messages received without prior consent, sent nationwide and en masse via SMS, promoting Coke Zero and other Coke products. [See Doc. No. 1 at ¶¶ 12–17.] These allegations, though indirect, suffice to plead the use of an ATDS in connection with Plaintiffs’ TCPA claims. See, e.g., In re Jiffy Lube Intern., Inc., Text Spam Litig., 847 F.Supp.2d 1253, 1260 (S.D.Cal.2012) (“Plaintiffs have stated that they received a text message from an SMS short code and that the message was sent by a machine with the capacity to store or produce random telephone numbers. While additional factual details about the machines might be helpful, further facts are not required to move beyond the pleading stage.”). ¶ Because Plaintiffs allege sufficient factual con-tent to support each element of the TCPA claims alleged, Defendant’s motion to dismiss for failure to state claim is DENIED.