In Nunes v. Twitter, Inc., 2014 WL 6708465 (N.D.Cal. 2014), Judge Chhabria, found that Plaintiff adequately had pleaded use of an ATDS and an absence of consent under Soppett.

 At least two district courts have held that the FCC, in the above-referenced orders, unlawfully expanded the statute’s definition of an automatic telephone dialing system. See Marks v. Crunch San Diego, ––– F.Supp.3d ––––2014 WL 5422976, at *3 (S.D.Cal. Oct. 23, 2014); Dominguez v. Yahoo!, 8 F.Supp.3d 637, 643 & n.6 (E.D.Pa.2014). But here Twitter has not asked the Court to reject the FCC’s interpretation of the statute. Instead, in its motion to dismiss Twitter only asserts that the FCC orders are distinguishable. See MTD at 6. But as discussed above, the FCC’s reasoning about predictive dialers appears to apply equally to the complaint’s allegations about Twitter’s equipment. The district courts in Marks and Dominguez reached similar conclusions about the breadth of the language in the FCC’s orders, even as they rejected that language as unlawful. Accordingly, Nunes’ primary theory for why Twitter uses an automatic telephone dialing system (namely, that the equipment as alleged falls within the definition adopted by the FCC) is correct, and the Court declines to consider at this stage whether the FCC’s definition constitutes an unlawful expansion of the statute, particularly where Twitter has not made that argument and where courts are in disagreement about it. Compare Marks and Dominguez with Sterk v. Path, ––– F.Supp.3d––––, 2014 WL 2443785, at *4 (N.D.Ill. May 30, 2014). ¶ Moreover, the complaint contains a secondary theory about how Twitter’s equipment qualifies as an automatic telephone dialing system. In paragraph 61, Nunes alleges that even if the statute requires that the equipment have the capacity to “generate” numbers at random or sequentially (rather than merely pulling and dialing numbers from a database without human intervention), Twitter’s equipment indeed has this capacity. Twitter argues that this allegation is wrong and that Twitter’s equipment would need to be dramatically reconfigured to meet the narrower definition of an automatic telephone dialing system, but that is not apparent from the allegations in paragraph 61, and it is therefore an evidentiary matter that cannot be resolved at the pleading stage. Accordingly, even if Twitter were correct that Nunes’ broader definition of an automatic telephone dialing system is not supported by the FCC orders (or that the FCC orders improperly expand the definition), in light of paragraph 61 dismissal of the complaint would not be warranted. ¶ Finally, putting aside whether the texts are sent from an automatic telephone dialing system, Twitter argues that Nunes fails to state a claim under the TCPA because Twitter has obtained consent to send texts to her. As previously mentioned, calls (or in this case, texts) from an automatic telephone dialing sys-tem are lawful if made with the “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A). Twitter contends it received consent on the facts alleged in this case because: (i) the complaint alleges that Nunes and other potential class members possess “recycled” cell phone numbers that previously belonged to people who consented to receive texts from Twitter; and (ii) a person who previously possessed the cell phone number, and not the new person who actually received the text, should be considered the “called party” from whom Twitter received “consent.” This argument fails for all the reasons provided by Judge Easterbrook in Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir.2012).