GoDaddy did not use an Autodialer, TCPA Case Dismissed

Print Friendly, PDF & Email

May 21, 2018

autodialer
Autodialer

On May 14, 2018, a Telephone Consumer Protection Act (“TCPA”) class action lawsuit filed by Plaintiff John Herrick (“Herrick”) in the United States District Court for the District of Arizona against Defendant GoDaddy.com, LLC (“GoDaddy”) was dismissed.

The TCPA prohibits the making of any call, including sending text messages, using an automatic telephone dialing system (“ATDS” or “autodialer”), to any telephone number assigned to a cellular telephone service, without the receiving party’s prior express written consent. In his lawsuit, Herrick complained of receiving a single text message from GoDaddy offering a “promo code” to save forty percent on new web-based products and services.

At issue in GoDaddy’s motion for summary judgment was whether the text sent on GoDaddy’s behalf by a web-based software company using its “3Seventy Platform” employed an autodialer. The TCPA defines 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). After deliberating, the District Court determined that the 3Seventy Platform did not satisfy the definition of autodialer, granted summary judgment and dismissed the lawsuit.

Why did the Court find that the 3Seventy Platform was not an Autodialer?

We have previously blogged about the recent D.C. Circuit Court of Appeals decision in ACA Int’l v. FCC which vacated various aspects of the Federal Communications Commission’s (“FCC”) 2015 Order interpreting the definition of autodialer (the “ACA Decision”). Among the reasons for vacatur was the FCC’s lack of meaningful, reasoned guidance as to the meaning of the phrase “using a random or sequential number generator,” including whether the device, itself, must have that capacity. In addition, the Court of Appeals found that the FCC provided an unreasonably expansive and inconsistent interpretation of the autodialer definition by suggesting that even dialing equipment which lacks the capacity to generate random or sequential numbers could be considered an ATDS.

In rendering its decision in the GoDaddy proceeding, the Arizona District Court concluded that the ACA Decision was binding, such that it was free to make its own determination as to what constituted an autodialer, unconstrained by the FCC’s 2015 Order. The District Court found the following facts to be material in granting summary judgment to GoDaddy: the 3Seventy Platform requires a user to provide a list of customer phone numbers, which are then uploaded; the user then logs on and selects which of the numbers it would like to send a text message to, manually types the subject text content and determines when the applicable text is to be sent; and the user, thereafter, authorizes the sending of the text by solving a “captcha” problem. Given these facts, the District Court concluded that the 3Seventy Platform only dialed from a fixed set of numbers, that is, a stored call list derived from a preprogrammed file or list provided by a user. Because the 3Seventy Platform could not randomly or sequentially generate the numbers by itself and required meaningful human intervention, the Court concluded that the 3Seventy Platform did not meet the definition of an autodialer within the meaning of the TCPA.

The Implications of the D.C. Circuit’s Autodialer Decision Continue to Grow

As we predicted, the D.C. Circuit’s ruling is proving to be pivotal in providing a useful tool in defending against TCPA lawsuits. As more courts arrive at their own common-sense interpretations of TCPA provisions, FCC staff may feel compelled to narrow its autodialer definition in its next iteration of TCPA guidance. Notwithstanding the foregoing, the ever-changing telemarketing landscape makes it critical to have telemarketing practices and procedures examined by experienced counsel.

If you are interested in learning more about this topic or are a party to a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

Attorney Advertising

Related Blog Posts:

FCC Seeks Comment on New Autodialer Definition

TCPA Rulemaking on Reassigned Numbers

Revocation of Consent after TCPA Ruling

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin