Since Facebook the biggest single issue determining the outcome of ATDS cases–especially at the pleadings stage–is whether a Court determines a caller has to use a RoSNG to produce telephone numbers to be dialed or to produce any number in connection with the storage of telephone numbers to be dialed.
The issue arises out of the TCPA’s ATDS definition itself, which references the use of a RoSNG to “store or produce” telephone numbers to be dialed.
Many courts have held–as the Supreme Court’s Facebook decision seems to suggest–that “storing” telephone numbers using an RoSNG does not require the RoSNG to generate telephone numbers. Indeed, FN7 suggests (but might be dicta) that using an RoSNG to determine the sequence of dialing is all that matters for purposes of assessing whether “storage” has taken place using an RoSNG.
But some courts–unfortunately, the minority–continue to hold that the telephone numbers called themselves must be randomly generated to constitute the use of an ATDS.
You can add to that bucket the very nicely reasoned decision in Lauren Cross., Case No. 1:20-cv-01047, 2022 U.S. Dist. LEXIS 10676 (W.D. Ark. January 20, 2022).
There the Court held that where a consumer provides their number to the caller, it doesn’t matter at all whether an RoSNG might be used in connection with the dialing process. As long as the telephone number itself wasn’t randomly generated all is well:
Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to state a plausible claim that [Defendant] used an ATDS to contact Jones in July 2020. As alleged in the Complaint, Jones provided her phone number directly to [Defendant] when she filed an insurance claim with the company. Plaintiff then alleges that Jones’s phone number became part of a preproduced dataset of numbers, and that [Defendant] used a dialing system to produce and contact a set of phone numbers that was randomly or sequentially generated from that preproduced dataset. Then, it is alleged that [Defendant] used the set of numbers generated by the dialer to specifically target Jones and send her a text message with information related to her open insurance claim. Importantly, the Complaint does not allege that Jones’s number was generated wholly at random but was instead randomly selected and specifically contacted out of a preproduced set of numbers.
Under these circumstances, the Court cannot hold that the allegations in the Complaint state a plausible claim that Jones’s cell phone number was randomly stored or generated using an ATDS. Jones specifically provided her phone number to [Defendant]. As such, Jones’s phone number was never randomly or sequentially generated through any ATDS technology. Instead, [Defendant] selected Jones’s number from its established dataset of phone numbers and then sent Jones a text message regarding her outstanding insurance claim. This is the precise form of non-random contact that has been specifically rejected by district courts under the TCPA in the months since Duguid.
So there you go. A great win for callers in this case. But be cautious.
There is a mighty big split of authority out there–keep checking the Facebook Ruling Resource Page to follow all the action–and the majority rule (at least at the pleadings stage) is that the ability to generate numbers –not just telephone numbers–is what matters for purposes of assessing whether “storage” took place using an RoSNG.
Even with the Ninth Circuit’s recent ruling rejecting FN7 I think we’re still a long way from resolution of these issues. Keep a close eye (we will) and be conservative in the short term.