While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).
The defendant in Luna moved for summary judgment on the ground that the promotional texts at issue were not sent via an ATDS, and instead were sent by a third party’s web-based messaging platform that: (1) lacked any capacity to generate random or sequential numbers; and (2) required significant human intervention to place texts. Id. at *4
The district court disagreed that the first issue excluded the platform from the ambit of the TCPA, on the ground that the FCC’s TCPA rulings, including the July 10 Declaratory Ruling, had expanded the definition of ATDS to encompass dialers that dial a “fixed set of numbers” from a list. Id. at *6. The district court also noted that the recent Declaratory Ruling expressly included “Internet-to-phone-text messaging technology” within the definition of ATDS. Id. citing Declaratory Ruling at ¶¶ 111-116.
But the district court went on to confirm that, even after the Declaratory Ruling, “the capacity to dial numbers without human intervention is required for TCPA liability.” Id. at *7. As for the text messages to plaintiff, these were sent as a result of human intervention, so as to entitle defendant to judgment. Id. at *9. Among other things, the numbers to be texted were input into the platform by defendant’s employee, the content of the messages were drafted by the same employee, and disseminated only upon the employee “hitting ‘send’” or otherwise determining the time at which the message would be sent. Id. at *9.
Luna thus provides a helpful reminder of the fundamental requirement – left unchanged by the recent Declaratory Ruling – that a platform must have the capacity to dial numbers without human intervention, before it may be deemed subject to the TCPA.
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