Well, that didn’t take long.

In a first-in-the-nation analysis, a district court in Colorado today has held that Facebook does not prevent a TCPA ATDS blast messaging case against a cannabis company from surviving the pleadings stage.

While noting that Facebook may prove far more important at the MSJ phase, the Court allowed the Complaint to survive the pleadings stage because it credited the Plaintiff’s allegations that the system at issue had the capacity to store numbers using a random or sequential number generator.

The highly generic nature of the messages at issue in that case likely inform the decision.

Here is the critical analysis:

In Facebook, Inc. v. Duguid, the Supreme Court unanimously rejected the Ninth Circuit’s interpretation of the TCPA. 2021 WL 1215717, at *2. Instead, the Court held that an ATDS “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Id. (emphasis added). As such, it is critical that a random or sequential number generator be utilized to constitute an ATDS. While the Supreme Court’s decision elucidates the definition of an ATDS, that holding will prove far more relevant on a future motion for summary judgment than it does now.

Note that the Court does find that a generator must be “utilized.” That’s a good first step, even though the case is permitted to proceed to discovery.

This is why “blast” text message platforms are in the yellow bucket folks. P2P and interactive texting is the future post-Facebook.*

Decision is here: Montanez v Future Vision Brain Bank

*Not legal advice folks. Seek counsel before deploying any new contact strategy –especially if it involves contacting consumers without express consent.