UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUCAS B. HORTON §

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-cv-01000

§

NATIONAL REPUBLICAN SENATORIAL 

COMMITTEE

§

§

Defendant. §

DEFENDANT NATIONAL REPUBLICAN SENATORIAL 

COMMITTEE’S MOTION TO DISMISS PLAINTIFF’S 

AMENDED COMPLAINT
i

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

ARGUMENT.................................................................................................................................. 2

I. Plaintiff’s Amended Complaint Alleges No Plausible Set of Facts Demonstrating That

 Defendant Sent The Messages Using an ATDS. ........................................................... 2

II. Plaintiff’s “Do-Not-Call” Count has No Basis In Law or Fact. .................................... 10

III. Plaintiff’s State Law and Federal Regulatory Claims Are Inapposite........................... 13

CONCLUSION............................................................................................................................. 15

CERTIFICATE OF SERVICE ..................................................................................................... 16
ii

Table of Authorities

Cases Page(s)

Adams v. Safe Home Sec. Inc.,

2019 U.S. Dist. LEXIS 126522 (N.D. Tex. July 30, 2019) ...................................................... 6

Aikens v. Synchrony Fin.,

2015 U.S. Dist. LEXIS 115467 (E.D. Mich. July 31, 2015) .................................................... 6

Aquilar v. Ocwen Loan Servicing, L.L.C.,

289 F. Supp. 3d 1000 (D. Minn. 2018) .................................................................................... 3

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ....................................................................................................... passim

Barton v. Temescal Wellness, L.L.C.,

525 F. Supp. 3d 195 (D. Mass. 2021) ....................................................................................... 9

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ....................................................................................................... 2, 6, 10

Camunas v. Nat’l Republican Senatorial Comm.,

541 F. Supp. 3d 595 (E.D. Pa. 2021) .............................................................................. passim

Camunas v. Nat’l Republican Senatorial Comm.,

2021 U.S. Dist. LEXIS 214217 (E.D. Pa. Nov. 4, 2021) ................................................. 12, 15

Cunningham v. Nationwide Sec. Sols., Inc.,

2017 U.S. Dist. LEXIS 223796 (N.D. Tex. Nov. 2, 2017) ....................................................... 6

Curry v. Synchrony Bank, N.A.,

2015 U.S. Dist. LEXIS 153131 (S.D. Miss. Nov. 12, 2015) .................................................... 6

Deleo v. Nat’l Republican Senatorial Comm.,

2021 U.S. Dist. LEXIS 210858 (D.N.J. Nov. 1, 2021) .................................................. passim

Dominguez v. Yahoo!, Inc.,

2017 U.S. Dist. LEXIS 11346 (E.D. Pa. Jan. 27, 2017) ........................................................... 3

Facebook, Inc. v. Duguid,

141 S. Ct. 1163 (2021) ................................................................................................... passim

Mainstream Mktg. Servs. v. FTC,

358 F.3d 1228 (10th Cir. 2004) .............................................................................................. 11

Malikyar v. BAC Home Loans Servicing, LP,

2011 U.S. Dist. LEXIS 135947 (E.D. Tex. Oct. 28, 2011) .................................................... 15
iii

Mantha v. QuoteWizard.com, L.L.C.,

2020 U.S. Dist. LEXIS 45481 (D. Mass. Mar. 16, 2020) ........................................................ 9

McEwen v. NRA of Am.,

2021 U.S. Dist. LEXIS 72133 (D. Me. Apr. 14, 2021) ............................................................ 5

Schiller v. Physicians Res. Grp., Inc.,

342 F.3d 563 (5th Cir. 2003) .................................................................................................. 15

Zelma v. Burke,

2017 U.S. Dist. LEXIS 1209 (D.N.J. Jan. 4, 2017) .................................................................. 7

Statutes

47 U.S.C. § 227 .................................................................................................................... passim

Tex. Bus. & Com. Code Ann. § 302.001 ..................................................................................... 14

Tex. Bus. & Com. Code Ann. § 302.101 ..................................................................................... 13

Rules

Fed. R. Civ. P. 4 ............................................................................................................................. 9

Fed. R. Civ. P. 8 ..................................................................................................................... 2, 8, 9

Fed. R. Civ. P. 12 ........................................................................................................... 3, 5, 11, 15

Other

16 C.F.R. § 310 ............................................................................................................................ 12

47 C.F.R. § 64.1200 ......................................................................................................... 12, 14, 15

In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Rep. & Order,

18 FCC Rcd. 14039, 2003 WL 21517853 (2003) .......................................................................11
1

Defendant, National Republican Senatorial Committee (“NRSC”), respectfully requests 

that the Court dismiss Plaintiff Lucas Horton’s (“Plaintiff”) Amended Complaint based on his

failure to state a claim.

INTRODUCTION

On March 30, 2022, Plaintiff filed a facially deficient Complaint in Texas state court 

alleging a single violation under the Telephone Consumer Protection Act (“TCPA”). In that filing, 

Plaintiff alleged—with little to no supporting facts—that he improperly received a single text 

message from Defendant, and sought only injunctive relief.

On May 4, 2022, Defendant removed the case to federal court pursuant to federal question 

jurisdiction. ECF No. 1. On May 25, 2022, Defendant filed a Motion for More Definite Statement

to enable it to respond to Plaintiff’s allegations. ECF No. 6. Plaintiff agreed with Defendant’s 

Motion and opted to file an Amended Complaint setting forth its allegations in greater detail. ECF 

No. 8. Plaintiff filed an Amended Complaint on June 6, 2022 requesting statutory and punitive 

damages, as well as injunctive relief.

1 ECF No. 10.

Despite having the advantage of a second bite at the pleading apple, Plaintiff has taken 

precious few steps toward correcting the deficiencies that doomed his original complaint. For this 

reason (and those that follow), the Court should dismiss his Amended Complaint in its entirety

with prejudice.

1 However, Plaintiff only requests injunctive relief with regard to a non-party. Compare ECF No. 

10 ¶ 9 (requesting “an injunction requiring Defendant to cease all unsolicited telephone texting 

activities to consumers as complained of herein”) with id. at 4 (alleging that non-party WinRed 

sent the alleged text message).
2

ARGUMENT

Federal Rule of Civil Procedure 8(a)(2) requires a pleading contain a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” While “detailed factual 

allegations” are not required, Rule 8 does require “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[t]hreadbare recitals of the elements 

of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim for 

relief. Id.

While the Court must accept all factual allegations as true, that “tenet . . . is inapplicable 

to legal conclusions.” Id. Critically, the Iqbal standard requires a plaintiff to provide factual 

allegations that “permit the court to infer more than the mere possibility of misconduct.” Id. at 679. 

The claim must be more than conceivable and must instead be facially plausible. See Twombly,

550 U.S. at 570. A claim is facially plausible if “the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 678. Here, there are no allegations, taken as true, that create the reasonable

inference that NRSC sent the messages in question or that it used an Automatic Telephone Dialing 

System (“ATDS”) to do so. Even assuming the truth of Plaintiff’s allegations, none of the conduct 

he alleges suffices to state a claim for liability under any of the statutory causes of action upon 

which Plaintiff purports to rely.

I. Plaintiff’s Amended Complaint Alleges No Plausible Set of Facts Demonstrating That 

Defendant Sent The Messages Using an ATDS. 

A violation under the TCPA occurs when: “[A]ny person within the United 

States . . . make[s] any call . . . 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). Thus, for 
3

Plaintiff’s Amended Complaint to survive a Rule 12(b)(6) motion to dismiss, he “must allege that 

the [D]efendant (1) called [his] cellular telephone number, (2) used an automatic telephone dialing 

system . . . to do so, and (3) lacked the [P]laintiff’s prior express consent.” Aquilar v. Ocwen Loan 

Servicing, LLC, 289 F. Supp. 3d 1000, 1005 (D. Minn. 2018). Should he fail to properly plead any 

of those elements, he has failed to state a claim upon which relief can be granted under Rule 

12(b)(6). See id. at 1005-06.

The U.S. Supreme Court Recently held that, to qualify as an ATDS, a device used to place 

a call—or in this case, send a text—“must have the capacity either to store a telephone number 

using a random or sequential [number] generator or to produce a telephone number using a random 

or sequential number generator.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 (2021)

(emphasis added); see also Dominguez v. Yahoo!, Inc., 2017 U.S. Dist. LEXIS 11346, at *3-4 (E.D. 

Pa. Jan. 27, 2017), aff’d, 894 F.3d 116 (3d Cir. 2018) (explaining that an ATDS must use a 

“random or sequential” number generator to either store or produce numbers and that “the phrase 

refers to the numbers themselves rather than the manner in which they are dialed”). Simply put, if 

Plaintiff failed to properly allege NRSC used a random or sequential number generator to either 

“store” or “produce” the number in question, then he has failed to properly allege the use of an 

ATDS—and thereby failed to state a claim upon which relief can be granted. See Facebook, Inc., 

141 S. Ct. at 1167.

Plaintiff’s First Cause of Action alleges a violation of the TCPA premised on his allegation 

that “[u]sing an ATDS, Plaintiff’s proxy, Winred, sent a text on its behalf and with its consent, 

knowledge, and for its benefit, to the Plaintiff without having any consent to do so.” See Am. 

Compl., ECF No. 10 at 4. As an initial matter, based upon his own pleading, Plaintiff alleges that 

a non-party—Winred—sent the text message that is the basis for his lawsuit (not to mention that 
4

he identifies that non-party as his own proxy).

2 The fact that Plaintiff sued an entity that he does 

not believe caused the alleged harm should be sufficient in and of itself to dismiss his claim. 

Moreover, Plaintiff offers little more than rampant legal conclusions and conjecture that NRSC

had any control over the text message he allegedly received. He claims that “Defendant, or its 

proxy (Winred), places unwanted texts to consumer cellphones for the purpose of soliciting 

donations for the GOP and its candidates,” but he pleads no facts establishing a relationship 

between Defendant and non-party WinRed. ECF No. 10, ¶ 1. Further, he alleges without factual 

support that the single text message that provides the basis for his lawsuit was sent “with the 

knowledge and approval of the Defendant.” Id. ¶ 2. Despite having an opportunity to amend his 

complaint and presumably having the alleged text message within his possession, Plaintiff has 

included no screenshots or details about the content of the message that establish a connection to 

Defendant or non-party WinRed. Plaintiff has provided no “factual content that allows the court 

to draw the reasonable inference that” NRSC actually sent Plaintiff any messages. Iqbal, 556 U.S. 

at 678. All he has alleged is that one day he received a text message, and he thinks that NRSC 

might have had something to do with it. That is not a legally cognizable claim. Just last year, a 

different federal court dismissed a TCPA lawsuit brought against the NRSC because the plaintiff 

failed to sufficiently allege that the NRSC sent the messages in question. Camunas v. Nat'l 

Republican Senatorial Comm., 541 F. Supp. 3d 595, 602 (E.D. Pa. 2021) (hereafter “Camunas I”) 

2 It is also worth noting for the record that WinRed does not send text messages either, and that 

Plaintiff already knows this because he previously sued WinRed Technical Services (an separate 

entity related to WinRed) in Texas state court for a similar allegation and his complaint was 

dismissed with prejudice. See Order, Horton v. WinRed Technical Services, LLC, No. JS20-

00325D (Dallas Cnty. Just. Ct. Oct. 12, 2021) (attached as Exhibit A). Left with no other avenue 

through which to sue WinRed, Plaintiff has apparently opted to bring an even weaker lawsuit 

against Defendant. For the Court’s reference, Plaintiff’s complaint in this earlier matter, as well as 

WinRed Techincal Services’s Motion to Dismiss (with its two original exhibits), as attached hereto 

as Exhibits B and C, respectively.
5

(“The Court agrees with the NRSC that the Amended Complaint fails to plausibly allege that the 

NRSC sent the messages at issue and will therefore grant the motion to dismiss the subsection 

227(b) claim pursuant to Rule 12(b)(6).”). Other district courts have done the same in dealing with 

TCPA defendants. See, e.g., Deleo v. Nat'l Republican Senatorial Comm., 2021 U.S. Dist. LEXIS 

210858, at *20 n.5 (D.N.J. 2021) (collecting cases that were dismissed on the basis that the plaintiff 

failed to plead sufficient facts that the call/text in question came from the defendant).

Second, and of specific importance to analyzing Plaintiff’s pleading failure—and 

preeminently important to this case overall—is the defined term “automatic telephone dialing 

system,” or ATDS. The TCPA defines an ATDS or an autodialer as “equipment which has the 

capacity (A) to store or produce telephone numbers to be called, using a random or sequential 

number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). And as noted above, the 

U.S. Supreme Court has provided important context regarding the sort of equipment that

constitutes an ATDS. Facebook, 141 S. Ct. at 1167.

3 The Court made clear that the statutory 

definition encompasses only those 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.” Id. As such, Plaintiff must include some “factual content” 

3 District courts have already begun applying the narrow ATDS definition elucidated in Facebook

in other TCPA cases, and in some instances have even narrowed it further. See, e.g., McEwen v. 

Nat’l Rifle Ass’n of Am. et al., 2021 U.S. Dist. LEXIS 72133, at *19 (D. Me. Apr. 14, 2021) (“After 

the Duguid opinion, the ATDS portion of the claim requires an allegation that [Defendant] used a 

random or sequential number generator to place a call to Plaintiff’s cellphone, not merely a claim 

that its dialing system has that capability.”). In addition, the U.S. Supreme Court has also recently 

vacated rulings from other circuits that adopted the broader definition of an ATDS. See, e.g., La 

Boom Disco, Inc. v. Duran, __S. Ct. __, 141 S. Ct. 2509 (Apr. 19, 2021) (“Judgment vacated, and 

case remanded to the United States Court of Appeals for the Second Circuit for further 

consideration in light of Facebook[.]”).
6

showing NRSC used a random or sequential number generator to either “store” or “produce” the 

telephone number in question. Iqbal, 556 U.S. at 678. Plaintiff has shown neither.

At the motion to dismiss stage, a plaintiff must properly allege sufficient facts that, taken 

as true, could lead to the reasonable inference NRSC used an ATDS. See Iqbal, 556 U.S. at 678. 

“Simply alleging the use of an ATDS, without more, is insufficient to sustain a TCPA claim.” 

Cunningham v. Nationwide Sec. Sols., Inc., 2017 U.S. Dist. LEXIS 223796, at *7 (N.D. Tex. Nov. 

2, 2017); see also Adams v. Safe Home Sec. Inc., 2019 U.S. Dist. LEXIS 126522, at *2-3 (N.D.

Tex. July 30, 2019) (noting that conclusory allegations, without additional details indicating that 

defendant placed calls using an ATDS, fail under the Twombly/Iqbal standards). Specifically, in 

pleading a TCPA cause of action, “it is entirely reasonable to demand that plaintiffs provide 

sufficient information about the timing and content of the calls they receive to give rise to the 

reasonable belief that an ATDS was used.” Curry v. Synchrony Bank, N.A., 2015 U.S. Dist. LEXIS 

153131, at *5 (S.D. Miss. Nov. 12, 2015) (quoting Aikens v. Synchrony Fin. 2015 U.S. Dist. LEXIS 

115467, at *4 (E.D. Mich. July 31, 2015)).

Plaintiff flatly alleges that Defendant sent the message in question using an ATDS, and 

that Defendant’s dialing system “has/have the capacity to store numbers, or to randomly produce 

telephone numbers to send text messages[.]” ECF No. 10, ¶ 17. But parroting verbatim statutory 

language defining the nature of a violation does not suffice to state a claim. Plaintiff’s only 

purported evidence concerning his ATDS argument are conclusory allegations that: (1) the text

had a “generic content”; (2) “that the incoming messages are not monitored”; (3) “that the number 

used to send the text messages does not accept incoming phone calls”; (4) that “Plaintiff’s 

telephone number was produced using a random or sequential number generator”; and (5) that 

Defendant “had no logical reason to have [Plaintiff’s] phone number.” Id. These are, however, 
7

merely “speculative assertions without ‘further factual enhancement[s].’” Zelma v. Burke, 2017 

U.S. Dist. LEXIS 1209, at *11 (D.N.J. Jan. 4, 2017) (quoting Iqbal, 556 U.S. at 678). Each will be 

examined in turn.

First Allegation: Texts Were Generic. By simply asserting that the text message in question

appeared “generic,” Plaintiff likely believes that he has carried his burden of plausibly alleging 

that the NRSC used an ATDS. ECF No. 10, ¶ 17. Plaintiff is wrong. Plaintiff presents no evidence 

that the message he received was generic, because he does not describe its content beyond claiming 

that it sought his “thoughts on the DISASTROUS Biden-Harris administration”—a description 

that, standing alone, could mean anything. Id. ¶ 13. Alleging that the message in question was 

“generic” is insufficient to plausibly allege that the NRSC used an ATDS to send the message. See 

Camunas I, 541 F. Supp. 3d at 603; see also Deleo, 2021 U.S. Dist. LEXIS 210858, at *17-18.

Second and Third Allegations: Incoming messages “not monitored” and incoming calls 

not accepted. Without any factual support, Plaintiff next speculates that the phone number from 

which he received the lone alleged text message was “not monitored,” and that it “does not accept 

incoming phone calls.” ECF No. 10, ¶ 17. Plaintiff offers no further information about what this 

means, how he knows that this is the case, why it is significant, or why he thinks it would be 

damning if true. Plaintiff does not allege that he called or texted the number back to determine the 

identity of the sender, nor does he explain the response (or lack thereof) that he received.

Furthermore, even if Plaintiff did respond to the phone number that texted him, a failure on the

part of the sender to acknowledge his message does not carry Plaintiff over the Rule 8 pleading 

threshold without more.

Fourth Allegation: Plaintiff’s number “was produced using a random or sequential 

number generator.” Plaintiff’s fourth piece of evidence is entirely circular: He claims that he 
8

knows Defendant used an ATDS to text him because “Plaintiff’s telephone number was produced 

using a random or sequential number generator.” Id. ¶ 17. In other words, Plaintiff knows that 

Defendant used an ATDS to text him because, according to him, Defendant produced his number 

using an ATDS. This allegation is a clear example of Plaintiff quoting statutory language verbatim 

to disguise the fact that he is not quite sure what it means. He knows that an ATDS can produce 

numbers using a random or sequential number generator, and he believes (incorrectly) that 

Defendant used an ATDS to text him, and therefore he reasons that Defendant produced his phone 

number using a random or sequential number generator (or, if that argument fails, by “magic[]” as 

he claims elsewhere in the Amended Complaint, see id. ¶ 15). Argument by syllogism is no 

argument at all.

Fifth Allegation: Defendant has “no logical reason” to have Plaintiff’s phone number.

Unable to conjure any factual evidence to support his cause of action, Plaintiff concludes his list 

of “evidence” that an ATDS was used to text him with a rhetorical shrug: Defendant must have 

used an ATDS because “they had no logical reason to have his phone number.” Id. ¶ 17. But 

Plaintiff never actually alleges that Defendant had his phone number; rather, he claims (again 

without evidence) that a non-party, WinRed, sent him a single text message on Defendant’s behalf.

Id. at 4. It is impossible for Plaintiff to construct a plausible claim as to how he is entitled to relief 

when he cannot get his own story straight.

Plaintiff makes one additional frustrated allegation to support his claim that an ATDS was 

used here: “there is no way that the Defendant is manually sending out thousands of these text 

messages every day.” Id. ¶ 21. As an initial matter, Plaintiff does not allege that he personally 

received “thousands of these text messages”; in fact, he only claims to have received one. See id.

¶ 13 (mentioning only “a text” received on March 1, 2022). Putting the slim nature of Plaintiff’s 
9

allegations aside, however, it is entirely technologically possible to manually produce thousands 

of text messages per day without resorting to an ATDS through the use of peer-to-peer texting 

platforms (“P2P”). The FCC considered the legality of P2P texting under the TCPA in a 2020 

Declaratory Ruling, holding that “the fact that a calling platform or other equipment is used to 

make calls or send texts to a large volume of telephone numbers is not probative of whether that 

equipment constitutes an autodialer under the TCPA.” Fed. Commc’n Comm’n, In re Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991 ¶ 3, CG Docket No. 

02-278 (June 25, 2020) (attached hereto as Exhibit D). As explained supra, the Supreme Court 

held in Facebook that a device “must have the capacity either to store a telephone number using a 

random or sequential [number] generator or to produce a telephone number using a random or 

sequential number generator” to be considered an autodialer under the TCPA. Facebook, Inc., 141 

S. Ct. at 1167. Plaintiff has not demonstrated with factual support why he thinks Defendant used 

an ATDS, and sheer volume alone will not satisfy his pleading burden even if that allegation were 

actually established here.

Many courts have held that a defendant’s use of a “vanity short code” when sending a text 

is sufficient to indicate an ATDS. See Camunas I, 541 F. Supp. 3d at 603. Here, however, Plaintiff 

has not and cannot allege a short code was used. According to the Amended Complaint, the single 

message received by Plaintiff originated from a full, eleven-digit number (i.e., a long code).4 ECF 

No. 10, ¶ 13; Mantha v. QuoteWizard.com, LLC, 2020 U.S. Dist. LEXIS 45481, at *3 (D. Mass. 

Mar. 16, 2020) (allegations regarding use of “a long code does not . . . support a plausible inference 

4 “A short-code is a six-digit number that allows high-volume, application driver messaging . . . 

Long-codes are meant for person-to-person communications and can send only 1 message per 

record; short-codes can send 100 messages per second.” Barton v. Temescal Wellness, LLC, 525 

F. Supp. 3d 195, 200 n.1 (D. Mass. 2021) (citation omitted).
10

that an ATDS was used.”) (emphasis omitted). Plaintiff has not alleged that the number from which 

he received a text was registered to, or otherwise used by, Defendant. See ECF No. 10.

* * *

Plaintiff essentially asks this Court to take his word that NRSC used an ATDS, and this 

Court should decline that invitation. At bottom, Plaintiff has offered no more than conjecture, at 

one point even speculating that Defendant “magically pulled the Plaintiff’s number out of thin air.” 

See Am. Compl., ECF No. 10, ¶ 15. When a plaintiff resorts to baseless allegations about “magic,” 

the Court can be certain they have not pled sufficient facts to state a claim. Under all governing 

precedent, these threadbare allegations fail to push Plaintiff’s pleadings from the “conceivable” to 

the facially “plausible.” See Twombly, 550 U.S. at 570. Because Plaintiff fails to plausibly allege 

that (1) the NRSC sent the message in question, and (2) the NRSC used an ATDS to send that 

message, his Amended Complaint should be dismissed under Rule 12(b)(6).

II. Plaintiff’s “Do-Not-Call” Count has No Basis In Law or Fact.

Plaintiff’s Amended Complaint also states that he placed his number on the Federal Trade 

Commission’s (“FTC”) National Do-Not-Call (“DNC”) Registry in December 2011. See ECF No. 

10, ¶ 12. In so doing, Plaintiff alleges NRSC violated Sections 227(b)(1)(B) and 227 (b)(1)(A)(iii)

by contacting him without prior consent despite his number’s inclusion in the DNC Registry. Id. 

¶¶ 20-21. Plaintiff appears to have cited the wrong statutory provisions; Section 227(b)(1)(B) 

prohibits the delivery of prerecorded voice calls to residential telephone lines (whereas Plaintiff 

alleges that he received the alleged text on his cell phone, see ECF No. 10, ¶ 11), and Section 

227(b)(1)(A)(iii) is the TCPA’s standard prohibition on dialing cell phones without consent using 

an ATDS (i.e., Plaintiff’s Count 1). Defendant’s best guess is that Plaintiff actually intended to 

bring a claim under Section 227(c)(5), and will respond to it as such.
11

Political calls and messages—such as the texts in question here—are expressly “exempt[]”

from restrictions regarding calls to those on the DNC Registry. In fact, the FTC has itself made

this observation on its official website. See Fed. Trade Comm’n, The Do Not Call Registry, 

available at https://www.ftc.gov/news-events/media-resources/do-not-call-registry (last visited

June 21, 2022) (“There are some exemptions to the Do Not Call rules. Because of the limits to

FTC’s authority, the Registry does not apply to political calls[.]”). So too has the FCC—i.e., the 

agency tasked with interpreting the TCPA, see 47 U.S.C. § 227(b)(2)—reached the same 

conclusion. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Rep. & 

Order, 18 FCC Rcd. at 14039-40 ¶ 37, 2003 WL 21517853, at *14 (“[C]alls that do not fall within 

the definition of ‘telephone solicitation’ as defined in section 227(a)(3) [now (a)(4)] will not be 

precluded by the national do-not-call list. These may include surveys, market research, political or 

religious speech calls.”) (emphasis added).

Federal courts that have considered this question have arrived at identical conclusions. The 

only circuit court to address this issue, the Tenth Circuit, is in accord with the agency’s reading of 

the law. See Mainstream Mktg. Servs. v. FTC, 358 F.3d 1228, 1234 (10th Cir. 2004), cert. denied, 

543 U.S. 812 (Oct. 4, 2004) (“The national do-not-call registry’s restrictions apply only to 

telemarketing calls made by or on behalf of sellers of goods or services, and not to charitable or 

political fundraising calls.”) (citing 16 C.F.R. §§ 310.4(b)(1)(iii)(B), 310.6(a); 47 C.F.R. 

§§ 64.1200(c)(2), 64.1200(f)(9)) (emphasis added). Likewise, in several recent cases filed against 

the NRSC, district courts have held that the Do Not Call Registry does not apply to non-profit 

political organizations, such as the NRSC. See Camunas v. Nat'l Republican Senatorial Comm., 

2021 U.S. Dist. LEXIS 214217, at *15-22 (E.D. Pa. 2021) (hereinafter “Camunas II”); see also

Deleo, 2021 U.S. Dist. LEXIS 210858, at *20-22 (“Here, because political organizations are 
12

exempt from the Do-Not-Call-Registry's restriction, and because the Amended Complaint 

identifies the NRSC as a political organization [], [the plaintiff] cannot maintain a claim under § 

227(c) of the TCPA.”).

There can be no doubt that if a call is political in nature, it cannot support a DNC claim.

Similarly, there can be no doubt that the purported text messages that Plaintiffs allegedly received 

were political in nature, which Plaintiff impliedly concedes. See ECF No. 10, ¶ 21 (addressing the 

political exception). Plaintiff cites to FCC guidance that notes political calls and texts cannot be 

sent without prior consent if the sender utilizes prohibited ATDS technology to do so, see id., but 

as explained supra, Plaintiff has proffered no factual allegations that demonstrate Defendant used 

an ATDS. To the contrary, Plaintiff has pleaded that “Defendant . . . places unwanted texts . . . for 

the purpose of soliciting donations for the GOP and its candidates,” that it does so “in an attempt 

to collect as many donations as possible,” and that “[t]he Link in the text led to a website soliciting 

donations from the Defendant.” ECF No. 10, ¶¶ 1, 8, 14. Thus, taking these allegations as true, 

NRSC’s texts are insufficient to state a DNC claim under Section 227(c) as a matter of law, as 

Plaintiff concedes they were “political.”

Finally, Plaintiff’s DNC claim must fail because in order to sufficiently state a DNC claim, 

among other things, a plaintiff “must plead that [] they receive[d] multiple calls with twelve months” 

in violation of the DNC statutory provisions. See 47 U.S.C. § 227(c)(5) (creating a private right 

of action for persons who “receive[] more than one telephone call within any 12-month 

period . . . ."); see also, e.g., Deleo, 2021 U.S. Dist. LEXIS 210858, at *20-21; Camunas I, 541 F. 

Supp. 3d at 604. Here, because Plaintiff only alleges the receipt of a single text, Plaintiff has not 

sufficiently alleged a DNC claim. See ECF No. 10, ¶¶ 2, 13.
13

III. Plaintiff’s State Law and Federal Regulatory Claims Are Inapposite.

Plaintiff also brings two claims under Texas state law, one alleging Defendant made a 

prohibited telephone solicitation to a Texas consumer (Count 3) and the other alleging a state-law 

TCPA violation (Count 5). Neither of these causes of actions is supported based upon Plaintiff’s 

scant factual allegations and the plain terms of the statutes he cites.

Plaintiff first alleges that Defendant violated Texas Business and Commerce Code Section 

302.101(a), which prohibits a “seller” from making “a telephone solicitation . . . to a purchaser 

located in this state unless the seller holds a registration certificate for the business location from 

which the telephone solicitation was made.” Words have specific meanings, and nearly every 

relevant word in this code section is defined in adjacent provisions of Texas law, and yet Plaintiff 

neglects to mention them. For example, Texas defines “telephone solicitation”—i.e., the prohibited 

conduct in which Plaintiff alleges Defendant engaged—as “a telephone call a seller or salesperson 

initiates to induce a person to purchase, rent, claim, or receive an item.” Tex. Bus. & Com. Code 

§ 302.001(7) (emphasis added). It further defines “seller” as “a person who makes a telephone 

solicitation on the person’s own behalf,” and “purchaser” as “a person who [] is solicited to 

become . . . obligated for the purchase or rental of an item.” Id. §§ 302.001(3), (5). Per Plaintiff’s 

own allegations, the text he received “solicit[ed] donations for the Defendant.” ECF No. 10, ¶ 14. 

It did not purport to sell or lease any “item” to Plaintiff at all; hence, under Texas law, it was not 

a prohibited “telephone solicitation.” Tex. Bus. & Com. Code § 302.001(7). Furthermore, a “seller” 

is one that solicits on its “own behalf,” and yet Plaintiff alleges that WinRed texted him on behalf 

of Defendant (and, again, for the purpose of soliciting donations, not selling Plaintiff any item). 

ECF No. 10 at 4.

Likewise, Plaintiff’s fourth cause of action alleges that Defendant is required by federal 

law to maintain a written telemarketing policy, but “Defendant does not.” ECF No. 10 at 5. 
14

Plaintiff’s basis for this claim is 47 CFR 64.1200(d)(1), which states that “[p]ersons or entities 

making calls for telemarketing purposes must have a written policy, available upon demand, for 

maintaining a do-not-call list.” Id.

Preliminarily, it is not clear on the face of Plaintiff’s Amended Complaint whether 

Defendant maintains a written do-not-call policy or not; Plaintiff never mentions this violation 

outside of Count 4, and never alleges that he asked for a copy of such policy and was refused. But 

even if he had made such a request, there is still no basis for liability here because Defendant is 

not subject to the requirements imposed by 47 CFR 64.1200(d)(1). By its own terms, that 

regulation only applies to those “making calls for telemarketing purposes.” Id. (emphasis added).

“Telemarketing” is defined just a few lines below the subsection upon which Plaintiff hangs his 

hat, and it means “the initiation of a telephone call or message for the purpose of encouraging the 

purchase or rental of, or investment in, property, goods, or services, which is transmitted to any 

person.” 47 CFR 64.1200(f)(13). The regulation even includes an express exemption for “[t]axexempt nonprofit organizations” such as Defendant. 47 CFR 64.1200(d)(7); see also Camunas II, 

2021 U.S. Dist. LEXIS 214217, at *16-22 (statutory language pertaining to commercial 

transactions does not incorporate political fundraising soliciatations).

Lastly, there is one simple reason why Plaintiff’s Count 4 must fail: as discussed above, 

claims brought under § 227(c) (or 64.1200, which was enacted under rulemaking authority derived 

from §227(c)) must allege more than one call/text—here Plaintiff has only alleged one. See 47 

U.S.C. § 227(c)(5) (“more than one telephone call within any 12-month period . . . ."); see also, 

e.g., Deleo, 2021 U.S. Dist. LEXIS 210858, at *20-21; Camunas I, 541 F. Supp. 3d at 604; ECF 

No. 10, ¶¶ 2, 13 (only a single message alleged).
15

Hence, just as with his inapposite state law claims, this is yet another instance of Plaintiff 

tossing a cause of action into his Amended Complaint that sounds tangentially related to the 

conduct of which he complains without performing the minimal investigation necessary to 

determine what those statutory provisions actually mean.

CONCLUSION

For the aforementioned reasons, this Court should dismiss with prejudice Plaintiff’s 

Amended Complaint for failure to state a claim under Rule 12(b)(6). Accepting his own scant 

factual allegations as true, nothing alleged in Plaintiff’s Amended Complaint amounts to a claim 

upon which relief can be granted, and allowing Plaintiff a third opportunity to get it right would 

be a waste of judicial times and resources.5

Respectfully submitted,

Dated: June 21, 2022 /s/ Dallin B. Holt

Dallin B. Holt

Texas Bar No. 24099466

HOLTZMAN VOGEL BARAN

 TORCHINSKY & JOSEFIAK PLLC

15405 John Marshall Hwy.

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809 (fax)

DHolt@holtzmanvogel.com

Counsel for Defendant

5 Courts in the Fifth Circuit regularly dismiss complaints with prejudice for failure to properly 

state a claim in an amended pleading. See, e.g., Malikyar v. BAC Home Loans Servicing, LP, 2011 

U.S. Dist. LEXIS 135947, at *13 (E.D. Tex. 2011) (the Court dismissed the Amended Complaint 

with prejudice and held “the Court finds that there are insufficient facts asserted to support 

plausible claims . . . . Plaintiff fails to address Defendants’ arguments, and her Amended Complaint 

fails to include sufficient facts to support these claims. Conclusory statements are insufficient to 

state a claim and are not entitled to an assumption of truth.”); Schiller v. Physicians Res. Grp., Inc., 

342 F.3d 563, 567 (5th Cir. 2003) (“[A]t some point a court must decide that a plaintiff has had a 

fair opportunity to make his case; if, after that time, a cause of action has not been established, the 

court should finally dismiss the suit.” (citation omitted)). 
16

CERTIFICATE OF SERVICE

I filed this motion and with the Court via ECF, which will electronically notify all counsel 

of record.

Dated: June 21, 2022 /s/ Dallin B. Holt

Counsel for Defendant