In one of the first court decisions issued since the FCC’s declaratory ruling expansively defined autodialers for purposes of the TCPA, a California district court has dismissed TCPA claims based on promotional text messages, finding that human intervention involved in the process of e-texting of the messages took the equipment out of the definition of an autodialer.

The plaintiff sued SHAC, LLC, operator of a Las Vegas strip club, for TCPA violations based on text messages he received. SHAC had engaged a third party mobile marketing company to provide a web based platform (EXTexting.com) for sending promotional text messages to customers. As described in the decision, according to the defendant’s affidavits, the process for transmitting the text messages through the EXTexting platform involved multiple steps involving actions of an employee. These included manual input, or cutting, pasting and inserting, the customer’s phone number into the platform, drafting and typing message content, designating customers to whom the message should be sent, and then clicking “send” on the website in order to transmit the messages.

The District Court for the Northern District of California discussed the FCC’s recent ruling that Internet-to-phone text messaging technology is expressly included in the definition of an autodialer, mentioned rulings that predictive dialers may be autodialers, and quoted the FCC’s statement that its interpretation of the term autodialer is “intended to ensure that robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.” 

That said, relying on the FCC’s statement in a 2008 ruling that “the defining characteristic of an auto dialer is the capacity to dial numbers without human intervention,” the court found that human intervention was involved in several stages of the process before the plaintiff received the message, such that the message was sent “as a result of human intervention,” and not by autodialer. It therefore granted summary judgment for the defendant.

The case provides some guidance for implementing text messaging systems that may escape the restrictions of the TCPA.

Read the full decision »