Bank v. Digital Media Solutions Inc.

MEMORANDUM & ORDER Plaintiff Todd Bank, a New York-licensed attorney proceeding pro se,¹ brings this suit — a putative class action — against Digital Media Solutions, Inc. (“DMS”), alleging a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227. Bank claims that DMS violated the TCPA by sending five unsolicited text messages to his cell phone in November 2021 using an automatic telephone dialing system (“ATDS”). DMS now moves to dismiss Bank’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, I deny DMS’s motion. I. Background A. The Telephone Consumer Protection Act The TCPA defines an automatic telephone dialing system as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” and “to dial such numbers.” 47 U.S.C. §227(a)(1)(A), (B). The Supreme Court recently held that “a necessary feature of an [ATDS] is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021).² In other words, the capacity to store and dial phone numbers, without the use of a random or sequential number generator, is insufficient to qualify a device as an ATDS. Id. at 1167. The TCPA forbids any person “to make any call” using an ATDS. 47 U.S.C. §227(b)(1)(A)(iii). “A text message to a cellular telephone…qualifies as a ‘call’ within the compass of [the TCPA].” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016). B. Bank’s Allegations The following facts are taken from the complaint and assumed to be true for purposes of this motion. Between November 26 and November 27, 2021, Mr. Bank received five text messages on his cell phone from a multimedia messaging service (“MMS”) code: 46758. Compl.

12-17, ECF No. 1. Bank alleges that “[a]t all relevant times, DMS owned and operated MMS Code 46758.” Id. at. 19. Further, he alleges that four of the five text messages contained links to a website that DMS owned and operated, id.