August 9, 2018
Last week, a federal district court in the State of Michigan denied a motion for summary judgment based, in part, on the classification of automatic telephone dialing systems (each, an “ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”). This TCPA law action was filed by Kevin A. Gary (“Plaintiff”) against TrueBlue, Inc. d/b/a People Ready, Inc., d/b/a Labor Ready, Inc. (“Defendant”) in the United States District Court for the Eastern District of Michigan (17-cv-10544).
How important is human intervention in TCPA law land?
Plaintiff’s Allegations and Defendant’s Response
Defendant is a work placement agency that connects workers with short term jobs. Defendant utilizes a text messaging platform to notify potential applicants of job openings.
One such applicant, Plaintiff, alleged that he received numerous employment-related text messages from Defendant in violation of TCPA law. In particular, Plaintiff alleged that Defendant violated the TCPA by: (1) sending him text messages via an ATDS; (2) texting him without prior express written consent; and (3) alternatively, if he had consented, sending him text messages after he revoked consent. Plaintiff argued that Defendant’s platform dialed from a set list of numbers, without human intervention, thus making it an ATDS pursuant to the broader classification of ATDS as interpreted by the Federal Communication Commission (“FCC”), the regulatory agency responsible for interpreting and implementing the TCPA. In addition, Plaintiff claimed that Defendant’s platform sent him “automatic” response texts to action words such as “start,” “help,” and/or “stop.”
Defendant countered by arguing that the text messages at issue were not sent using a random or sequential number generator pursuant to the TCPA’s definition. In addition, Defendant argued that its platform does not have the capacity to dial from a set list of telephone numbers without human intervention. Indeed, Defendant provided evidence that its workers craft the outgoing text messages and press certain keys to send these text messages.
Court’s TCPA Law Decision
The Court found that Defendant’s use of its platform to send text messages was not an ATDS within the meaning of TCPA law. The Court examined the TCPA’s definition of ATDS limiting it to “equipment which has the capacity—to store or produce numbers to be called, using a random or sequential number generator.” The Court explained that “the statute never mentions a capacity to dial from a set list.” Given that Plaintiff did not allege that Defendant’s platform had “the capacity to store or produce numbers using a number generator,” the Court found that the platform does not qualify as an ATDS as a matter of TCPA law.
The Court further reasoned that even under the FCC’s broader classification of ATDS, Defendant provided sufficient evidence to show that it sent text messages with human intervention. The human intervention component, according to the Court, precluded Defendant’s platform from “falling under the definition of ATDS.”
TCPA Law Going Forward
Although there continue to be exceptions, following the decision of the D.C. Circuit in ACA International, the recent TCPA law momentum generally points towards a presumption that a dialer calling from a list of telephone numbers will not qualify as an ATDS (irrespective of human intervention), unless the dialer generates numbers randomly or sequentially. This trend is certainly encouraging to those operating in the telemarketing space. Notwithstanding the foregoing, the ever-changing telemarketing landscape makes it critical to continue to have telemarketing practices and procedures examined by experienced counsel.
If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational 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.
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