In Snow v. Ge, No. 5:18-CV-511-FL, 2019 U.S. Dist. LEXIS 99760 (E.D.N.C. June 14, 2019), Judge Flanagan dismissed a TCPA text message case.
Although the Fourth Circuit and courts within this circuit have not addressed the split between these courts and Marks, the court finds the Dominguez approach better comports with the plain language of the statue. The statute unambiguously incorporates a “random or sequential number generator” into the definition of an ATDS. 47 U.S.C. § 227(a)(1). Thus, plaintiff must allege facts permitting an inference that defendants called her with equipment that has the capacity to store or produce numbers using a random or sequential number generator. Finally, plaintiff argues that, even if she must allege equipment using a random or sequential number generator, she has alleged sufficient facts to meet this standard. However, as discussed above, plaintiff’s own allegations foreclose a determination that defendants called her with equipment using a random or sequential number generator. (See, e.g., Compl. ¶¶ 47-57). The plain language and purpose of the TCPA does not support allowing claims to proceed under such alleged circumstances. In sum, plaintiff’s TCPA claim fails as a matter of law and must be dismissed. Because the court determines that plaintiff’s claims must be dismissed [*19] due to failure to allege use of an ATDS, and this determination turns largely on a question of statutory interpretation, the court does not reach additional grounds for dismissal raised by defendants that turn on other deficiencies in plaintiff’s pleadings.