On January 9, the district court for the Eastern District of New York dismissed a pro se plaintiff’s TCPA lawsuit for failure to properly allege that the defendants used an automatic telephone dialing system (ATDS) when placing calls to the plaintiff.

In Kannon v. Warranty Protection Services, the plaintiff alleged that the auto warranty defendants placed a sales call from a spoofed phone number to his cell phone using an ATDS. He further alleged that the defendants provided opt-in information through an affiliate marketing network that sent three unsolicited text messages to him.

Applying several cases from the Second Circuit as precedent, the district court held that the plaintiff failed to raise an inference that the defendants used an ATDS, a requisite for TCPA claims. The court further found that the plaintiff failed to establish the relationship between defendants and the affiliate marketing network. Additionally, since the text messages were not sent by “short code” phone numbers, nor did the plaintiff describe the content of the messages, the court held there was “no way to determine whether an ATDS was used.” The court concluded the plaintiff’s TCPA claim must be dismissed as he did not adequately describe the content of the calls or allege a volume of calls that would raise an inference that the defendants used an ATDS.

Notwithstanding the above, the court did provide the plaintiff the opportunity to remedy his complaint given his pro se status, advising that a successful amended complaint would require him to plead specific facts about: (1) the relationship between the defendants and the affiliate marketing network; and (2) how the defendants communicated using an ATDS.

While the court did not further explore whether the opt-in text messages the plaintiff received constituted TCPA violations, several courts in the Second Circuit have reviewed similar issues.

In Rotberg v. Joseph A. Bank Clothiers, Inc., 345 F.Supp.3d 466, 479 (S.D.N.Y. 2018), a district court held that a caller seeking out a consumer’s express written consent to send subsequent telemarketing or advertising texts is not, as a matter of law, already engaged in telemarketing. Other courts have held that once express consent to receive non-telemarketing texts is established, texts sent to permit recipients to complete registration were permissible. For example, in Daniel v. Five Stars Loyalty, Inc., 2015 WL 7454260, at *4 (N.D. Cal. Nov. 24, 2015) the court held that a text sent solely for the purpose of allowing the recipient to complete a registration process was not telemarketing within the meaning of 47 C.F.R. § 64.1200(f)(12).

Troutman Pepper will continue to monitor developments in TCPA litigation.