As discussed on Deserve to Win this week, the courts continue to struggle with how to apply Facebook—and particularly at the pleadings stage–in connection with the use of an ROSNG to “Store” telephone numbers.

One line of cases that seems to be gaining steam simply looks at whether the messages appear to be random-fire or not. If so, the case proceeds past the pleadings stage.

For instance, UNDERWOOD v. IFA HOLDINGS, LLC, 2022 WL 2307738 (N.D. Ala. June 27, 2022) a court denied a motion to dismiss filed by a caller. The Court determined that the allegations of the complaint were sufficient to meet the Facebook requirements for the simple reason that the texts seemed random in nature:

Here, Mr. Underwood alleges that he received two text messages from a number with which he had no connection, and the content of the texts were not specifically targeted to him. This is sufficient to support a plausible inference that Cygnal used an automatic telephone dialing system. The court WILL DENY Cygnal’s motion to dismiss this claim.

A handful of courts have now adopted this “middle position” approach, which seems to me a more accurate take on estimating Facebook’s impact on a case at the pleadings stage than most courts have derived.

Hopefully this trend continues as I’d really like there to be an articulable pleading standard on this issue.

Interestingly, however, the Court holds the texts at issue–designed to “promote gambling” and predispose readers to favorably view a local Native American tribe–were not marketing in nature. This is so because they did not encourage “the purchase or rental of, or investment in, property, goods, or services.” As such the court dismissed the DNC claims.

Also interesting, the court interprets Alabama’s Telephone Solicitations Act, Ala. Code § 8-19C-2 to apply only to voice communications, and not to text messages. The ATSA is broader than the TCPA in that it includes “[o]ther communication” in which the caller offers “[a] gift, award, or prize … to a purchaser who has not previously purchased from the person initiating the communication,” the caller invites a “telephone call response,” and “[t]he salesperson intends to complete a sale or enter into an agreement to purchase during the course of the telephone call, or “[o]ther communication,” which can include “a written or oral notification or advertisement transmitted through any means.” Id. § 8-19A-3(3). But a “telephone solicitation” is only “[a] voice communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in property, goods, or services,” subject to exceptions. Ala. Code § 8-19A-3(17); see also Ala. Admin. Code § 770-X-5-.31(1)(o).

The Court concluded that the statute only outlawed telephone solicitations in this context. And since the calls at issue were actually texts, the ATSA did not ban  the conduct at issue.

But callers reaching out to Alabama residents should keep the ATSA in mind.