27.  On or about June 18, 2019, Defendant sent the following telemarketing text messages  to Plaintiff’s cellular telephone number ending in 4155 (the “4155 Number”):   28.  Defendant’s text messages were transmitted to Plaintiff’s cellular telephone, and within  the time frame relevant to this action.     29.  Defendant’s text messages constitute telemarketing because they encouraged the future  purchase or investment in property, goods, or services, i.e., promoting their services to consumers to  search for real estate properties through Defendant’s mobile application.         30.  The information contained in the text messages advertises Defendant’s “free real estate  app to search properties,” which Defendant sends to promote its business.   32.  At no point in time did Plaintiff provide Defendant with his express written consent to  be contacted using an ATDS.     33.  Plaintiff is the subscriber and sole user of the 4155 Number, and is financially  responsible for phone service to the 4155 Number.    34.  Plaintiff has been registered with the national do-not-call registry since 2011.   35.  The impersonal and generic nature of Defendant’s text messages demonstrates that  Defendant utilized an ATDS in transmitting the messages.  See Jenkins v. LL Atlanta, LLC, No. 1:14- cv-2791-WSD, 2016 U.S. Dist. LEXIS 30051, at *11 (N.D. Ga. Mar. 9, 2016) (“These assertions,  combined with the generic, impersonal nature of the text message advertisements and the use of a short  code, support an inference that the text messages were sent using an ATDS.”) (citing Legg v. Voice  Media Grp., Inc., 20 F. Supp. 3d 1370, 1354 (S.D. Fla. 2014) (plaintiff alleged facts sufficient to infer  text messages were sent using ATDS; use of a short code and volume of mass messaging alleged would  be impractical without use of an ATDS); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D.  Cal. 2010) (finding it "plausible" that defendants used an ATDS where messages were advertisements  written in an impersonal manner and sent from short code); Hickey v. Voxernet LLC, 887 F. Supp. 2d  1125, 1130; Robbins v. Coca-Cola Co., No. 13-CV-132-IEG NLS, 2013 U.S. Dist. LEXIS 72725, 2013  WL 2252646, at *3 (S.D. Cal. May 22, 2013) (observing that mass messaging would be impracticable  without use of an ATDS)).     36.  The text messages originated from telephone number 954-945-7909, a number which  upon information and belief is owned and operated by Defendant.   38.  Long codes work as follows:  Private companies known as SMS gateway providers  have contractual arrangements with mobile carriers to transmit two-way SMS traffic.  These SMS  gateway providers send and receive SMS traffic to and from the mobile phone networks' SMS centers,  which are responsible for relaying those messages to the intended mobile phone. This allows for the  transmission of a large number of SMS messages to and from a long code.    39.  Specifically, upon information and belief, Defendant utilized a combination of hardware  and software systems to send the text messages at issue in this case.  The systems utilized by Defendant  have the capacity to store telephone numbers using a random or sequential generator, and to dial such  numbers from a list without human intervention.    40.  Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion  of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.  Defendant’s  text messages also inconvenienced Plaintiff and caused disruption to his daily life.    41.  Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  himself and all others similarly situated.   43.  Defendant and its employees or agents are excluded from the Class. Plaintiff does not  know the number of members in the Class, but believes the Class members number in the several  thousands, if not more.  47.  The common questions in this case are capable of having common answers. If Plaintiff’s  claim that Defendant routinely transmits text messages to telephone numbers assigned to cellular  telephone services is accurate, Plaintiff and the Class members will have identical claims capable of  being efficiently adjudicated and administered in this case.  52.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth  herein.    53.  It is a violation of the TCPA to make “any call (other than a call made for  emergency purposes or made with the prior express consent of the called party) using any  automatic telephone dialing system … to any telephone number assigned to a … cellular telephone  service ….” 47 U.S.C. § 227(b)(1)(A)(iii).    54.  Defendant – or third parties directed by Defendant – used equipment having the  capacity to dial numbers without human intervention to make non-emergency telephone calls to  the cellular telephones of Plaintiff and the other members of the Class defined below.    55.  These calls were made without regard to whether or not Defendant had first  obtained express permission from the called party to make such calls. In fact, Defendant did not  have prior express consent to call the cell phones of Plaintiff and the other members of the putative  Class when its calls were made.    56.  Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an  automatic telephone dialing system to make non-emergency telephone calls to the cell phones of  Plaintiff and the other members of the putative Class without their prior express written consent.   57.  Defendant knew that it did not have prior express consent to make these calls, and  knew or should have known that it was using equipment that at constituted an automatic telephone  dialing system. The violations were therefore willful or knowing.    59.  Plaintiff re-allege and incorporate paragraphs 1-51 as if fully set forth herein.   60.  At all times relevant, Defendant knew or should have known that its conduct as  alleged herein violated the TCPA.   60.  Plaintiff repeats and realleges the paragraphs 1-51 of this Complaint and incorporates  them by reference herein.   61.  Defendant knew that it did not have prior express consent to make these calls, and  knew or should have known that its conduct was a violation of the TCPA.   62.  47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person  or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”1   62.  Because Defendant knew or should have known that Plaintiff and Class Members  had not given prior express consent to receive its autodialed calls, the Court should treble the  amount of statutory damages available to Plaintiff and the other members of the putative Class  pursuant to § 227(b)(3) of the TCPA.   63.  47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call  for telemarketing purposes to a residential telephone subscriber unless such person or entity has  instituted procedures for maintaining a list of persons who request not to receive telemarketing calls  made by or on behalf of that person or entity.”   63.  As a result of Defendant’s violations, Plaintiff and the Class Members are entitled  to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C.  § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C).  64.  Any “person who has received more than one telephone call within any 12-month  period by or on behalf of the same entity in violation of the regulations prescribed under this subsection  may” may bring a private action based on a violation of said regulations, which were promulgated to  protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they  object.  47 U.S.C. § 227(c).   65.  Defendant violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated,  telephone solicitations to telephone subscribers such as Plaintiff and the Do Not Call Registry Class  members who registered their respective telephone numbers on the National Do Not Call Registry, a  listing of persons who do not wish to receive telephone solicitations that is maintained by the federal  government.    67.  To the extent Defendant’s misconduct is determined to be willful and knowing, the  Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by  the members of the Do Not Call Registry Class.  Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)   PROPOSED CLASS   Violations of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)   Violation of the TCPA, 47 U.S.C. § 227  (On Behalf of Plaintiff and the Do Not Call Registry Class)  