In Gragg v. Orange Cab Co., Inc., 2013 WL 195466 (W.D.Wash. 2013), Judge Lasnik found that Plaintiff’s TCPA failed under Iqbal/Twombly due to failure to plead an ATDS. However, Judge Lasnik set forth the standards for what a Plaintiff would have to allege to properly plead use of an ATDS. The Plaintiff alleges that he received an unsolicited text message from defendants, acting in concert, offering a free smart phone application (“app”) that would allow plaintiff to book defendants’ taxi cabs. Plaintiff maintains that the offer was part of a larger marketing campaign in the State of Washington and elsewhere, that downloading the app would redound to the commercial benefit of defendants, and that defendants sent the unsolicited text message by means of an automated telephone dialing system (“ATDS”). Plaintiff alleges that this conduct violates TCPA. Judge Lasnik discussed Plaintiff’s inadequate pleading with respect to use of an ATDS.
The TCPA makes it unlawful for any person “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial prerecorded voice … to any telephone number assigned to a … cellular telephone service ….“ 47 U.S.C. § 227(b)(1). The Federal Communications Commission (“FCC”) has determined that both voice messages and text messages to wireless numbers are prohibited. Rules and Regulations Implementing the Telephone Consumer Protec-tion Act of 1991, 68 Fed.Reg. 44144–01, 44166 (July 25, 2003).FN2 An ATDS is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Machines used to dial telephone numbers from a list fall within the statutory definition of an ATDS: “the evolution of the teleservices industry had progressed to the point where dialing lists of numbers was far more cost effective [than dialing randomly or sequentially generated numbers], but that the basic function of such dialing equipment[ ] had not changed—the capacity to dial numbers without human intervention.” Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 73 Fed.Reg. 6041–01, 6042 (Feb. 1, 2008). Plaintiff alleges that he received an unsolicited text message, that he did not consent to receipt of the text message or the storage of his wireless number for marketing purposes, and that the message he received was sent by means of an ATDS. Based only on the allegations of the complaint, this last contention, while possible, does not appear plausible. Plaintiff does not disavow a business relationship with defendants, and he carefully avoids stating that he did not provide his wireless number to defendants, giving rise to the eminently reasonable inference that the text he received was a personal and individual response to a request for a taxi. Plaintiff’s allegations regarding the frequency with which this message has been sent and the use of an ATDS to send them are unsupported by any specific facts and appear less likely than the alternate inference, namely that plaintiff received a customer-specific text (including an advertisement for Taxi Magic) through human agency, rather than an ATDS. ¶ Although the Court finds that plaintiff’s allegations regarding the use of the ATDS are insufficient under Twombly, leave to amend the complaint is appropriate. The record shows that plaintiff can, consistent with his Rule 11 obligation, provide additional allegations regarding (1) the number of texts defend-ants sent containing substantially the same message regarding Taxi Magic and (2) the temporal disconnect between the time plaintiff utilized defendants’ cab services and the time he received the text. Both allegations would support the conclusion that defendants used equipment to store and dial plaintiff’s cell phone number long after he had completed his transaction with defendants in violation of the TCPA. FN3 [FN3. 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. See Hickey v. Voxernet LLC, ––– F.Supp.2d ––––, 2012 WL 3682978 at *2–3 (Aug. 13, 2012). ¶ Contrary to defendants’ argument, the inclusion of personalized information in a voice mail or text message does not immunize it from scrutiny under the TCPA. Programs capable of merging a list of consumer names or other identifying in-formation with a boilerplate message are commonplace. 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.]