It took less than a week for a District Court to cite the Supreme Court’s ruling in Facebook v. Duguid. In Montanez v. Future Vision Brain Bank, a Colorado court mentions the landmark SCOTUS ruling in Telephone Consumer Protection Act (TCPA) case against a cannabis dispensary. However, the court did not cite Facebook in order to dismiss the case—at least, not yet.
The case centers on a cannabis dispensary that allegedly sent marketing text messages via an automatic telephone dialing system (ATDS) without proper consent. On its face, this would seem to make it a prime candidate to be dismissed in the wake of Facebook. But the court makes a key procedural and technological distinction in deciding to allow the case to continue to the next stage. Because SCOTUS’s Facebook decision restricts the definition of ATDS to devices that “have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator,” the district court found that it could not make this determination at the pleadings stage. Rather, the court ruled that the determination of whether or not an ATDS was utilized is more appropriately decided in response to a motion for summary judgment.
The likelihood is that a motion for summary judgment will indeed lead to this case being dismissed. However, this case still demonstrates how Facebook is not a “Get Out of Jail Free” card for all calling and texting campaigns. The details matter and some degree of risk remains for any callers conducting campaigns without proper consent.