In a case that was first reported by Eric Troutman at TCPAland, a District Court judge in Ohio on Friday granted a motion to dismiss a class-action lawsuit alleging violations of the Telephone Consumer Protection Act after the plaintiffs received two unsolicited text messages on their mobile phones.
The two plaintiffs were both involved in separate automobile accidents and received text messages from the defendant advertising legal services. The plaintiffs contended that the defendant obtained the mobile phone numbers from copies of the police reports and sent the text messages without consent in violation of the TCPA.
The judge in the case, Judge Donald C. Nugent of the District Court for the Northern District of Ohio, ruled that the equipment used to send the text messages did not meet the new definition of an automated telephone dialing system determined by the D.C. Court of Appeals for the District of Columbia in ACA International v. FCC. In that case, the Appeals Court struck down portions of a 2015 Declaratory Order issued by the Federal Communications Commission, including an expanded definition of an ATDS to include any equipment that had the potential capacity to store or produce telephone numbers to be called, using a random or sequential number generator.
A copy of the ruling in the case of Lord v. Kisling, Nestico and Redick (KNR) can be accessed by clicking here.
Here, Plaintiffs’ do not allege any facts that KNR uses a system that has the ability to store or produce telephone numbers to be called using a random or sequential number generator. Instead, Plaintiffs’ complaint alleges that KNR’s equipment can “be modified or programmed to generate and dial random or sequential numbers.” Even if these allegations are taken as true they do not plausibly allege the use of an ATDS. In addition, after ACA Int’l, the fact that KNR’s system maybe capable of sending bulk or mass messages without human intervention is irrelevant. Plaintiffs’ remaining allegations are not facts and are simply conclusions that are insufficient to state a claim.
