The United States Court for the District of Massachusetts recently allowed part of a pro se plaintiff’s complaint under, inter alia, the Telephone Consumer Protection Act (TCPA), 47 U.S.C § 227 et seq in Jones v. Safr Technologies, Inc., to proceed beyond the motion to dismiss stage. This decision should caution businesses from trusting the reliability of federal telephone databases for communication purposes.
Factual Background
The pro se plaintiff alleged that the defendant software company sent four text messages to a cell phone number that had been registered on the federal and Massachusetts “do not call” registries. However, plaintiff’s phone number previously had been used for business purposes. The defendant company contended that it had obtained plaintiff’s phone number from a specific, public phone list for businesses in plaintiff’s prior industry.
Plaintiff filed an eight-count complaint against the defendant in federal court, alleging various violations of the TCPA, the Massachusetts Telephone Solicitation Act (MTSA), and the consumer protection statute, M.G.L. c. 93A. Specifically, plaintiff alleged that defendant used an automatic telephone dialing system (ATDS) to send the four text messages to his now residential phone number. Defendant filed a motion to dismiss the complaint.
Analysis
At the outset, the court dismissed plaintiff’s claims under the MTSA because text message communications did not fall under the statute’s “plain and ordinary” meaning. However, the court said the TCPA did regulate the unauthorized sending of text messages and evaluated plaintiff’s claims under that statute on the merits. Because defendant had sent text messages to a phone number they had found in a niche, corporate database and because plaintiff could not plausibly prove that defendant had used an ATDS to reach plaintiff, the court dismissed this part of plaintiff’s TCPA claim.
However, the court found that plaintiff’s claim that defendant wrongfully sent text messages to a residential number under the TCPA had merit at the motion to dismiss stage. The court specifically said it could not conclude now that defendant had relied on a current, public database of telephone numbers in plaintiff’s former industry when it had sent plaintiff the four text messages. Accordingly, a portion of plaintiff’s claims under the TCPA survived the motion to dismiss stage.
Conclusion
This decision should provide a cautionary tale for any businesses that routinely use public databases for telephone numbers and engage in mass communication text messages, as this decision calls into question the accuracy of those databases. Businesses that routinely use text messages to send mass text messages should be wary of their reliance on any public databases that list telephone numbers.
