525 F.Supp.3d 195
D. Mass.2021Background
- Plaintiff Diane Barton received two unsolicited text messages (Dec. 20, 2019 and Jan. 23, 2020) from a ten‑digit long‑code number advertising “EXTENDED HOURS” and containing a Bitly link to a menu.
- Barton’s telephone number had been on the National Do Not Call Registry for at least 31 days; she did not give prior express written consent and no emergency justified the messages.
- Barton filed a putative class action under the TCPA asserting (Count I) robotext claims based on use of an ATDS and (Count II) Do Not Call Registry claims for receiving multiple solicitations.
- Defendant moved to dismiss under Rule 12(b)(6), arguing the complaint failed to plead that texts are “calls” under the TCPA, that an ATDS was used, that Barton is a residential subscriber, and that the messages were solicitations.
- The court treated text messages as calls under the TCPA, found Barton’s factual allegations (generic, commercial texts with Bitly links) sufficient to plausibly infer use of an ATDS at the motion‑to‑dismiss stage, and held the Do Not Call claim adequately pled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether text messages were sent using an Automatic Telephone Dialing System (ATDS) (robotext claim) | Generic, non‑personalized commercial texts containing Bitly links and mass‑message indicia permit an inference that an ATDS was used | Complaint lacks non‑conclusory technical allegations; messages came from a long‑code, were infrequent, and could be person‑to‑person | Allegations (anonymous/commercial texts + Bitly link) just crossed the plausibility line; Count I survives dismissal |
| Whether Barton stated a Do Not Call Registry claim (residential‑subscriber status and solicitation) | Barton is registered on the DNC (supports residential subscriber inference) and the texts directly solicited business (name, hours, menu link) | Barton is not a residential subscriber and the messages are not solicitations | At pleading stage, DNC registration suffices to plausibly allege residential subscriber status; texts qualify as solicitations; Count II survives dismissal |
Key Cases Cited
- Campbell‑Ewald Co. v. Gomez, 577 U.S. 153 (2016) (Supreme Court confirmed that a text message to a cellular telephone qualifies as a “call” under § 227(b))
- Barr v. American Ass’n of Political Consultants, Inc., 140 S. Ct. 2335 (2020) (Supreme Court discussed FCC interpretation applying TCPA to text messages)
- Breda v. Cellco P’ship, 934 F.3d 1 (1st Cir. 2019) (First Circuit treating TCPA as applicable to text messages and discussing ATDS issues)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading plausibility standard applicable to motion to dismiss)
- Rosenberg v. LoanDepot.com LLC, 435 F. Supp. 3d 308 (D. Mass. 2020) (district court allowed ATDS inference where messages were nonworking/spoofed and similar complaints existed)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (Ninth Circuit endorsing FCC interpretation that TCPA covers text messages)