In the latest example of a Silicon Valley court bending over backward to keep the TCPA’s grimy little paws off an emerging tech company, Facebook won a huge victory on the automatic telephone dialing system (“ATDS”) front with its motion to dismiss in Duguid v. Facebook, Inc., 2016 WL 1169365 (N.D. Cal. Mar. 24, 2016), which was granted by the Court last week. The phenomenon of Silicon Valley judges protecting their own is nothing new.  See “Rivals defeat TCPA claims on home turf as Yahoo! takes big loss in the Third Circuit,” Casetext (Oct. 28, 2015).

The Court’s decision is notable for its ruling that either: (1) plaintiff must allege (or the allegations in the complaint must otherwise support an inference) that defendant sent the challenged messages randomly; or (2) plaintiff must allege that defendant used a predictive dialer (or a system that functions like a predictive dialer). Duguid’s resurrection of the “randomness” requirement represents a considerable departure from prevailing ATDS case law and the FCC’s TCPA Omnibus approach. Nonetheless, the Court held that the allegations in Plaintiff’s complaint did not support even an inference of the use of ATDS because the targeted nature of the text alerts sent in response to login attempts was “inconsistent with the sort of random or sequential number generation required for an ATDS.”  Additionally, the Court rejected Plaintiff’s arguments that “the capacity to produce or store random or sequential numbers is not a necessary feature of an ATDS”—an argument Plaintiff made based upon the 2003 FCC Order regarding predictive dialers—because Plaintiff did not allege that Facebook used a predictive dialer or equipment that functions like a predictive dialer.