23.  In or about September 2019, Defendant sent the following telemarketing text messages  to Plaintiff’s cellular telephone number ending in 3899 (the “3899 Number”):  6   24.  Defendant’s text messages were transmitted to Plaintiff’s cellular telephone, and within  the time frame relevant to this action.     25.  Defendant’s text messages constitute telemarketing because they encouraged the future  purchase or investment in property, goods, or services, i.e., selling Plaintiff an automobile.        26.  The information contained in the text message advertises that  Defendant is “highly  motivated to make deals!!!!” with “GREAT specials”.    27.  Plaintiff received the subject texts within this judicial district and, therefore, Defendant’s  violation of the TCPA occurred within this district.  Upon information and belief, Defendant caused  other text messages to be sent to individuals residing within this judicial district.     28.  At no point in time did Plaintiff provide Defendant with her express written consent to  be contacted using an ATDS.    7   29.  Plaintiff is the subscriber and sole user of the 3899 Number, and is financially  responsible for phone service to the 3899 Number.    30.  Plaintiff has been registered with the national do-not-call registry since 2008.   31.  The impersonal and generic nature of Defendant’s text message, 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)).     32.  The text messages originated from telephone number 330-915-3129, a number which  upon information and belief is owned and operated by Defendant.   33.  The number used by Defendant (330-915-3129) is known as a “long code,” a standard  10-digit phone number that enabled Defendant to send SMS text messages en masse, while deceiving  recipients into believing that the message was personalized and sent from a telephone number operated  by an individual.     34.  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  8  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.    35.  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.    36.  To send the text messages, Defendant used a messaging platform (the “Platform”)  that permitted Defendant to transmit thousands of automated text messages without any human  involvement.     37.  The Platform has the capacity to store telephone numbers, which capacity was in  fact utilized by Defendant.   38.  The Platform has the capacity to generate sequential numbers, which capacity was  in fact utilized by Defendant.   39.  The Platform has the capacity to dial numbers in sequential order, which capacity  was in fact utilized by Defendant.   40.  The Platform has the capacity to dial numbers from a list of numbers, which  capacity was in fact utilized by Defendant.   41.  The Platform has the capacity to dial numbers without human intervention, which  capacity was in fact utilized by Defendant.   42.  The Platform has the capacity to schedule the time and date for future transmission  of text messages, which occurs without any human involvement.   43.  To transmit the messages at issue, the Platform automatically executed the  following steps:  9  a. The Platform retrieved each telephone number from a list of numbers in the  sequential order the numbers were listed;  b. The Platform then generated each number in the sequential order listed and  combined each number with the content of Defendant’s message to create  “packets” consisting of one telephone number and the message content;  c. Each packet was then transmitted in the sequential order listed to an SMS  aggregator, which acts an intermediary between the Platform, mobile carriers  (e.g. AT&T), and consumers.    d. Upon receipt of each packet, the SMS aggregator transmitted each packet –  automatically and with no human intervention – to the respective mobile carrier  for the telephone number, again in the sequential order listed by Defendant.   Each mobile carrier then sent the message to its customer’s mobile telephone.   44.  The above execution these instructions occurred seamlessly, with no human  intervention, and almost instantaneously.  Indeed, the Platform is capable of transmitting thousands  of text messages following the above steps in minutes, if not less.   45.  Further, the Platform “throttles” the transmission of the text messages depending  on feedback it receives from the mobile carrier networks.  In other words, the platform controls  how quickly messages are transmitted depending on network congestion.  The platform performs  this throttling function automatically and does not allow a human to control the function.   46.  The following graphic summarizes the above steps and demonstrates that the  dialing of the text messages at issue was done by the Platform automatically and without any  human intervention:   10   47.  Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion  of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.  Defendant’s  text messages also inconvenienced Plaintiff and caused disruption to her daily life.     48.    Specifically, Plaintiff estimates that she has wasted approximately 120 seconds  reviewing all of Defendant’s unwanted messages.  Each time, Plaintiff had to stop what she was  doing to either retrieve her phone and/or look down at the phone to review the message.     49.  Furthermore, Defendant’s text messages took up memory on Plaintiff’s cellular  phone. The cumulative effect of unsolicited text messages like Defendant’s poses a real risk of  ultimately rendering the phone unusable for text messaging purposes as a result of the phone’s  memory being taken up. See https://www.consumer.ftc.gov/articles/0350-text-message-spam#text  (finding that text message solicitations like the ones sent by Defendant present a “triple threat” of  identity theft, unwanted cell phone charges, and slower cell phone performance).    50.  Defendant’s text messages also can slow cell phone performance by taking up space on  the recipient phone’s memory. See https://www.consumer.ftc.gov/articles/0350-text-message- spam#text (finding that spam text messages can slow cell phone performance by taking up phone  memory space).   11  51.  Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  herself and all others similarly situated.   52.  Plaintiff brings this case on behalf of a Class defined as follows:  No Consent Class: All persons who from four years prior  to the filing of this action (1) were sent a text message by or  on behalf of Defendant, (2) using an automatic telephone  dialing system, (3) for the purpose of soliciting Defendant’s  goods and services, and (4) for whom Defendant claims (a)  it did not obtain prior express written consent, or (b) it  obtained prior express written consent in the same manner  as Defendant claims it supposedly obtained prior express  written consent to call the Plaintiff.  Do Not Call Registry Class: All persons in the United  States who from four years prior to the filing of this action  (1) were sent a text message by or on behalf of Defendant;  (2) more than one time within any 12-month period; (3)  where the person’s telephone number had been listed on  the National Do Not Call Registry for at least thirty days;  (4) for the purpose of selling Defendant’s products and  services; and (5) for whom Defendant claims (a) it did not  obtain prior express written consent, or (b) it obtained  prior express written consent in the same manner as  Defendant claims it supposedly obtained prior express  written consent to call the Plaintiff.   53.  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.  56.  There are numerous questions of law and fact common to the Class which predominate  over any questions affecting only individual members of the Class.  Among the questions of law and  fact common to the Class are:  (1) Whether Defendant made non-emergency calls to Plaintiff’s and Class  members’ cellular telephones using an ATDS;  (2) Whether Defendant can meet its burden of showing that it obtained prior  express written consent to make such calls;  (3) Whether Defendant’s conduct was knowing and willful;  (4) Whether Defendant is liable for damages, and the amount of such damages; and  (5) Whether Defendant should be enjoined from such conduct in the future.   57.  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.  62.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth  herein.    63.  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  14  automatic telephone dialing system … to any telephone number assigned to a … cellular telephone  service ….” 47 U.S.C. § 227(b)(1)(A)(iii).    64.  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.    65.  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.    66.  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.   67.  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.    68.  As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA,  Plaintiff and the other members of the putative Class were harmed and are each entitled to a  minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an  injunction against future calls. Id.   69.  Plaintiff repeats and realleges the paragraphs 1 through 61 of this Complaint and  incorporates them by reference herein.  15   70.  At all times relevant, Defendant knew or should have known that its conduct as  alleged herein violated the TCPA.   71.  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.   72.  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.   73.  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).  74.  Plaintiff repeats and realleges the paragraphs 1 through 61 of this Complaint and  incorporates them by reference herein.   75.  The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o  person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has  registered his or her telephone number on the national do-not-call registry of persons who do not wish  to receive telephone solicitations that is maintained by the federal government.”   76.  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  1 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No.  02-278,  Report  and  Order,  18  FCC  Rcd  14014  (2003)  Available  at  https://apps.fcc.gov/edocs_public/attachmatch/FCC-03-153A1.pdf  16   77.  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.”   78.  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).   79.  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.    80.  Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry  Class received more than one telephone call in a 12-month period made by or on behalf of Defendant  in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged  herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47  U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R.  § 64.1200.   81.  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.  17  Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)   PROPOSED CLASS   Violation of the TCPA, 47 U.S.C. § 227  (On Behalf of Plaintiff and the Do Not Call Registry Class)   Violations of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)  