Recently another federal district court ruled that text messages sent from a group messaging platform were not autodialed, even when transmitted in bulk, because of the significant human intervention required to initiate a text message campaign through the platform. Since the text messages were not autodialed, the messages were not subject to the Telephone Consumer Protection Act (TCPA) and the case was dismissed. Jenkins v. mGage, LLC, 2016 WL 4263937 (N.D. Ga. Aug. 12, 2016).
In this class action case, the Plaintiff alleged that she received approximately 150 text messages from the Opera Nightclub in Atlanta that promoted the club’s upcoming events, but she never consented to receive Opera’s marketing messages. She even alleged that she asked Opera to stop texting her on at least 17 different occasions, but the messages kept coming.
Relying on a similar TCPA case Arent Fox defended last year, Luna v. Shac, LLC, 122 F. Supp. 3d 936 (N.D. Cal. Aug. 19, 2015), the court found that bulk text messages sent through a group messaging platform fell outside the TCPA because the platform user was required to “(i) navigate to a website; (ii) log into the Platform; (iii) determine the content of the text message; (iv) type the content of the text message into the Platform; (iv) determine whether to send the text message immediately or to schedule a later date to send the message; (v) either click “send” to send the message immediately, or take action to select a later date and time to send the message by using a drop-down calendar function… . [The platform user] also determined the telephone numbers to which text messages were sent by an employee choosing a particular list of numbers and uploading the list to mGage’s Platform as a CSV file.” The court further found that because the FCC’s 2015 TCPA Order underscored that the defining characteristic of an autodialer is the ability to dial numbers without human intervention, the platform at issue in this case could not be deemed an autodialer because “direct human intervention is required to send each text message.”
The decisions in Luna and Jenkins are consistent with, and rely on, the FCC’s most recent interpretation of what equipment constitutes an autodialer. It is also consistent with a growing body of federal court decisions standing for the general proposition that if a text message involves human intervention at some point in the initiation process, such a text message falls outside of the TCPA’s consent requirements.