The U.S. Court of Appeals for the Ninth Circuit has reversed a lower court decision that alleged a collection agency, Adir International, used an automated telephone dialing system (ATDS), or autodialer, when sending text messages to a plaintiff. The ruling, however, was “Not for Publication,” which means it is not precedential and does not carry the same authority as a published opinion. Despite it being an unpublished opinion, the case can still be cited as an authority and the court can choose to give the ruling consideration in other cases.
The collection agency is alleged to have sent four similarly formatted text messages to the plaintiff, and after each one, the plaintiff responded with “Stop.” Immediately after sending the stop reply, the plaintiff received another response indicating he would not receive any more messages. Because the texts appears to come from an SMS shortcode, it is likely that they were sent automatically, and possibly in violation of the Telephone Consumer Protection Act.
The district court held that Flores did not sufficiently allege the use of an ATDS because his allegations “suggest direct targeting that is inconsistent with the sort of random or sequential number generations required for an ATDS” and because they suggest that “Defendants attempts to contact him were anything but ‘random.’” However, dialing equipment does not need to dial numbers or send text messages “randomly” in order to qualify as an ATDS under the TCPA. Rather, “the statute’s clear language mandates that the focus must be on whether the equipment has the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator.’”
When ruling on a motion to dismiss, the Appeals Court wrote, a district court must draw “all reasonable inferences in favor of the plaintiff.” And by drawing on “judicial experience and common sense,”
it is reasonable to infer that the “the equipment [Adir used] has the capacity to ‘store or produce telephone numbers to be called, using a random or sequential number generator,’” even if it was not presently being used for that purpose.
The case, Flores v. Adir International
