So a guy named Michael Anthony allegedly received unwanted text messages of a political nature reading as follows:

“All Trump patriots must read this. >>>>> Trump said he’ll run for Pres. if we win back the House! Unless everyone reading this steps up, we lose Trump’s Majority for good. Emergency 3X Match activated for 30 mins >> gopwin.us/n38.”

And

“DROP WHAT YOU’RE DOING! 45min left to activate your Trump Patriot Status >> 99% of memberships claimed! HURRY. Before link expires for good: gopwin.us/ag7″

Compelling.

Anthony claims he did not request these messages or sign up to receive them and that they violated the TCPA because they were sent to a randomly-selected list of phone numbers.

The defendant–the Republican National Congressional Committee–that allegedly sent the messages, moved to dismiss arguing it did not use an automatic telephone dialing system (ATDS) to send the messages.

In Anthony v. NRCC, 2024 WL 4351641 (E.D. Pa Sept. 30, 2024) the Court agreed with the defense and held the use of a list of numbers does NOT trigger the TCPA even if a random number generator is used to select the numbers called:

The Court agrees with NRCC that the only actual “random” activity alleged in the complaint is that NRCC’s auto dialer equipment randomly chose numbers to send the text messages to. But because the numbers originated from a pre-produced list of numbers, which were not randomly or sequentially generated, the allegations in the complaint do not meet the TCPA’s definition of an ATDS. Therefore, the Court holds that NRCC’s system does not constitute an ATDS as defined in the TCPA

Hmmmm.

While this is a great and defense-friendly result I have to say I categorically disagree with the holding. (For those wondering, the assigned judge was a Democratic Biden appointee– not a Trump appointee.)

The U.S. Supreme Court in Facebook held directly that a system is an ATDS if it either produces or stores numbers using an random or sequential number generator. While reasonable minds can differ on the meaning of “storage” in this context, using a randomizer to populate a list seems to pretty clearly meet the definition.

Or, perhaps not.

But for those of you wondering why you can’t get those insane political messages you didn’t ask for to stop– this may have something to do with it.

And for those of you who wonder why Congress can’t figure out how to stop robocalls (remember this hearing from last year?) just remember, these folks like sending messages to get themselves reelected: