TCPA: District Court Enters Favorable Ruling in Favor of Text Message Provider

The Northern District of California has entered summary judgment in favor of a text messaging provider, holding that the equipment did not qualify as an automated telephone dialing system or “ATDS” because it required human intervention. Glauser v. Twilio, Inc. et al, Case No. 4:11-cv-02584 (N.D. Cal. Feb. 4, 2015).  In this putative class action, Glauser asserted TCPA claims against GroupMe, alleging that text messages he received were sent by an ATDS to his cell phone without his prior express consent.  Glauser described GroupMe’s product as a “group messaging” application which allows users to create a group and transmit text messages to group members at the same time.  Glauser received two welcome text messages which stated:

Hi, Brian Glauser, it’s Mike L. Welcome to GroupMe! I just added you to Poker w/Richard L.  Text back to join the conversation.

GroupMe is a group texting service.  Standard SMS rates may apply.  Get the app at http://groupme.com/a to chat for free.  Reply #exit to quit or #help for more.

 GroupMe filed a motion for summary judgment on the issue of whether it used an ATDS as required for TCPA liability.  The court’s analysis involved three issues.  First, whether TCPA liability depends on the present capacity or (“actual capacity”) of the equipment to function as an autodialer, or the potential capacity of the equipment to function as an autodialer.  Second, whether the TCPA’s definition of an autodialer includes predictive dialers. And finally, whether the equipment at issue in this case had the capacity to send text messages without human intervention.

Regarding the first issue, whether TCPA liability depends on the present capacity (or “actual capacity”) of the equipment to function as an autodialer, or the potential capacity of the equipment to function as an autodialer, the court rejected GroupMe’s argument that TCPA liability turns on a device’s actual capacity.  GroupMe argued that a potential capacity test was too expansive and would create liability for any call made with a smartphone or any other device capable of being programmed to store telephone numbers and to call them automatically.  The court rejected the argument, relying on the language of the TCPA, FCC interpretations, and Ninth Circuit case law, to hold that the relevant inquiry under the TCPA is whether the equipment has the present capacity to perform autodialing functions, whether or not those functions are actually used.

As to the second issue, whether the TCPA’s definition of an autodialer includes predictive dialers, the court rejected GroupMe’s argument that its equipment did not have the present capacity to dial numbers randomly or sequentially and, thus, is not an “autodialer.”  In rejecting GroupMe’s argument, the court relied upon the FCC’s interpretation of autodialers as including predictive dialers which may dial numbers from programmed lists, and which need not necessarily generate numbers randomly or sequentially.

GroupMe’s final argument, that its equipment did not have the capacity to send text messages without human intervention, proved to be the winner.  Because its system only sent text messages in response to user requests (i.e., in response to human intervention), GroupMe contended that it its equipment was not an autodialer.  The court agreed, noting that the FCC has made it clear that the defining characteristic of an “autodialer” is not the ability to make calls randomly or sequentially – instead, the “basic function” of an autodialer is “the capacity to dial numbers without human intervention.”