FCC Issues Declaratory Ruling Regarding Whether P2P Text Messaging Platforms Are Autodialers

On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”

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Court Dismisses Claims that Shopping Platform was Directly or Vicariously Liable for Retailer’s Texts

The Northern District of California recently granted a motion to dismiss, finding the plaintiff failed to plausibly allege that e-commerce platform Shopify was directly or vicariously liable for the alleged TCPA violations of a retailer using the platform. Sheski v. Shopify (USA) Inc., No. 19-CV-06858, 2020 WL 2474421 (N.D. Cal. May 13, 2020).

The plaintiff filed a putative class action complaint alleging, among other claims, that the defendants Shopify (USA) Inc. and Shopify Inc. (collectively, “Shopify”) violated the TCPA due to Shopify’s “unlawful practice of making, facilitating and participating in an unauthorized text message marketing campaign en masse to consumers’ cellular telephones.”

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Taking Side on Circuit-Splitting Issue, Texas District Court Holds that Facebook Promotional Texts Were Not Sent Using ATDS

The Western District of Texas recently dismissed with prejudice a TCPA suit against Facebook brought by Colin Suttles, an individual who claimed he received thirty-two unsolicited texts from the company encouraging him to visit Facebook.com. Suttles v. Facebook, Inc., No. 1:18-CV-1004, at 2 (W.D. Tex. May 20, 2020).

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Second Circuit Joins Ninth Circuit in Adopting Expansive Interpretation of ATDS, But Carves Out Smartphones

In a decision released on April 7, the Second Circuit joined the Ninth Circuit in adopting an expansive interpretation of what qualifies as an Automatic Telephone Dialing System (ATDS), finding that online texting platforms that use human-generated lists and require a human to click “send” on a screen to initiate the texts falls within the statutory definition. Duran v. La Boom Disco, Inc., No. 19-600, 2020 WL 1682773, at *8–9 (2d Cir. Apr. 7, 2020). In an effort to respond to expected critics of their approach, the court explained its view of why “so-called smartphones” and other modern devices do not qualify as an ATDS despite having similar functionality to the online texting platforms at issue (the ability to store a list of numbers and to dial them by simply clicking “send”). Id. at *8 n.39. The decision deepens the divide between circuit courts on what qualifies as an ATDS.

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District Court Sharpens Focus on Injury-in-Fact Requirement in Text Messaging Cases

The Southern District of Florida recently dismissed a TCPA putative class action for lack of standing, finding that the plaintiff could not show he suffered a concrete injury-in-fact.  Reinforcing Eleventh Circuit precedent, the court held both that the number and infrequency of the text messages at issue was insufficient to support plaintiff’s loss of privacy, waste of time, and intrusion upon seclusion allegations and that he failed to show by a preponderance of the evidence that the texts depleted his cell phone battery or negatively impacted his data and messaging plan. Eldridge v. Pet Supermarket Inc., No. 18-22531, 2020 WL 1475094 (S.D. Fla. Mar. 10, 2020).

In Eldridge, plaintiff alleged that defendant used an ATDS to send him seven advertising and telemarketing text messages without his consent, in violation of the TCPA. Plaintiff received the first two messages after he texted defendant’s number in order to enter a raffle for free pet food. They confirmed plaintiff’s entry in the raffle, provided a link to the raffle’s rules, and stated that plaintiff consented to receive automated text messages from defendant. The next five messages, sent over approximately three months, contained coupon codes and information regarding upcoming pet adoption events. Plaintiff alleged that all seven text messages “‘invaded [his] privacy, intruded upon his seclusion and solitude, wasted his time by requiring him to open and read the messages, depleted his cellular telephone battery, and caused him to incur a usage allocation deduction to his text messaging or data plan.’” Id. at *2.

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District of Massachusetts Grants Dismissal of Threadbare ATDS Claims

The U.S. District Court for the District of Massachusetts recently granted a TCPA defendant’s motion to dismiss, in part, because the plaintiff failed to allege plausible facts supporting an assertion that the defendant, QuoteWizard, used an ATDS to send two text messages to his phone. Mantha v. QuoteWizard.com, LLC, No. 19-cv-12235, 2020 WL 1274178 (D. Mass. Mar. 16, 2020). The case highlights an important point, namely that defendants can still prevail on ATDS-related claims at the motion to dismiss stage, even despite a recent decision from the jurisdiction applying the expansive definition of an ATDS from the Ninth Circuit’s opinion in Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1043 (9th Cir. 2018). See, e.g., Gonzalez v. HOSPO Corp., 371 F. Supp. 3d 26, 34 (D. Mass. 2019) (applying the Marks definition of an ATDS).

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Seventh Circuit Disagrees with Ninth Circuit and Joins the Third and Eleventh Circuit in Adopting a Narrow Interpretation of ATDS

In a decision released on February 19 that relied principally on rules of grammar, the Seventh Circuit held that to be an ATDS under the TCPA, a device must be capable of storing or producing telephone numbers using a random or sequential number generator, not merely capable of storing numbers. Gadelhak v. AT&T Services, Inc., No. 19-1738 (7th Cir. Feb. 19, 2020). As such, it affirmed the District Court’s decision (albeit based on a different interpretation of the TCPA) that granted summary judgment in favor of AT&T where AT&T’s customer management tool “dials numbers only from a customer database.” In so holding, the Seventh Circuit joined the Third Circuit’s and the Eleventh Circuit’s (which we blogged about here) narrow interpretation of ATDS and widened the split with the Ninth Circuit’s expansive interpretation. Compare Glasser v. Hilton Grand Vacations Co., 2020 WL 415811 (11th Cir. Jan. 27, 2020) & Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018) with Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018).

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Text Messages Inviting Independent Voters to Political Speeches by Former Presidential Hopeful Howard Schultz Were Not “Solicitations” For His Book Tour

The Western District of Washington recently held in Vallianos. v. Schultz, C19-0464-JCC, 2019 WL 4980649 (W.D. Wash. Oct. 8, 2019), that two text messages encouraging recipients to view a livestream of a political speech by the former chairman and CEO of Starbucks Howard Schultz did not amount to “solicitations” under the TCPA. While exploring a run for President, Schultz released a book, “From the Ground Up,” and went on a three-month long cross-country book tour. He also collected from voter records the phone numbers of individuals registered as having “No Party Affiliation” and sent them the text messages at issue. Named plaintiffs Cassandra Vallianos, Stacey Karney, and Mike Barker brought a putative TCPA class action against Schultz alleging that the text messages were sent to them without their consent after they had placed their cell phone numbers on the national Do Not Call Registry.

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Florida Federal Court Rejects ATDS Allegations, Grants Motion to Dismiss

In a text message case, the U.S. District Court for the Southern District of Florida recently granted Atlantic Coast Enterprise, LLC’s (“Ace”) motion to dismiss upon finding that the plaintiff had failed to plausibly allege Ace’s use of an automatic telephone dialing system (“ATDS”). See Turizo v. Jiffy Lube International, Inc., et al., No. 19-61140, 2019 WL 4737696 (S.D. Fla. Sept. 27, 2019) (available here).

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The Eleventh Circuit Holds That Receipt of a Single Text Does Not Satisfy Article III

The Eleventh Circuit recently held that receiving a single unsolicited text message does not amount to the harm required to sustain a TCPA claim. In Salcedo v. Hanna, John Salcedo brought a TCPA claim against his former attorney after receiving one multimedia text message offering a ten percent discount on future legal services. Salcedo filed suit in district court as the representative of putative class members of former Hanna clients who received similar texts. The district court denied the defendants’ motion to dismiss for lack of standing. In an unusual step, the Eleventh Circuit agreed to hear the case on interlocutory appeal, and reversed the district court’s decision. In so doing, it created a circuit split on Article III standing and a significant hurdle for certifying TCPA class actions in the Eleventh Circuit.

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