As we reported earlier in the year, the National Republican Senatorial Committee was absolutely getting lit up with TCPA lawsuit after lawsuit being filed against it. It looked like the TCPA was being used as a political tool for a while there.
Predictably the NRSC moved to dismiss these cases arguing that it was not using an ATDS after Facebook in sending the texts at issue. Even more predictably, it just lost that argument.
The issue is pretty simple–the messages that the NRSC was allegedly sending are generic pleas blasted at the faceless masses. Such messages might have been sent automatically from a list (which is fine), but they also might have been random-fired using an R&SNG (which is not). So discovery as to the capacity/use (not sure which) of the system will be needed.
And that was precisely the holding of Libby v. Nat’l Republican Senatorial Comm., No. 5:21-CV-197-DAE, 2021 U.S. Dist. LEXIS 140103 (W.D. Tex. July 27, 2021). There it was held that allegations of receipt of generic campaign messages are sufficient to survive the pleadings stage post-Facebook:
[Plaintiff] does not allege that Defendant placed targeted, individualized calls or texts to him.
It should be noted that the judge assigned to the case was a Reagan appointee, so…take from that what you will.
We’ll keep an eye on all of this.