Following the Ninth Circuit’s decision in Marks v. Crunch, 904 F.3d 1041 (9th Cir. 2018), the Plaintiff appealed the Arizona District Court’s Order granting summary judgment to defendant GoDaddy in his putative TCPA class action.  Herrick v. LLC, No. 18-16048 (9 Cir.), Dist. Court Civ. Case No. 16-cv-254-DJH.  The Plaintiff brought a putative class action against defendant GoDaddy alleging that the company used third party provider 3Seventy to send SMS text messages to over 100,000 persons, and that the platform sent and delivered text messages without human involvement, which plaintiff alleges constitutes an ATDS.   In deciding GoDaddy’s motion for summary judgment, the Arizona District Court found that the platform used by 3Seventy was not an ATDS because the platform could “not randomly or sequentially generate [the targeted] numbers by itself.”  Alternatively, the District Court found that the human intervention involved in uploading the list of numbers to the 3Seventy platform and in authorizing the system to send the texts was sufficient to find that the system did not constitute an ATDS.   In his appeal, the Plaintiff argues that the Arizona District Court’s ruling is contrary to the Ninth Circuit’s recent decision in Marks v. Crunch, and compels reversal of the District Court’s Order.  Specifically, the Plaintiff argues that the Ninth Circuit rejected the “argument that a device cannot qualify as an ATDS unless it is fully automatic, meaning that it must operate without any human intervention whatsoever.”  Marks, 904 F.3d at 1052-52.  The Plaintiff also argues that the actual dialing of numbers by the 3Seventy platform was completely automated and required no human intervention, thus constituting an ATDS.  The Plaintiff urges the Ninth Circuit to look to its own precedent in determining what constitutes and ATDS and overturn the District Court’s decision.