In the case of Glauser v. GroupMe, Inc., the District Court for the Northern District of California recently rendered a decision on motion, the focal issue of which was determining whether GroupMe, Inc.’s (“GroupMe”) group mobile messaging application fit within the Telephone Consumer Protection Act’s (“TCPA”) definition of an autodialer. By way of background, GroupMe’s application allows users to create a group of individuals/friends and transmit mobile messages to all members of the group at the same time. Here, Plaintiff received a series of text messages sent through the GroupMe application, which Plaintiff claimed violated the TCPA’s prohibition on the use of autodialers to send text messages to cell phone numbers without obtaining the prior express written consent of the consumer.
After review, the Court granted GroupMe’s motion for summary judgment to dismiss the class action, concluding that GroupMe’s messaging application did not have the capacity to dial numbers without human intervention, as required to be considered an autodialer for TCPA liability purposes. The Court found that the subject text messages were only sent as a direct response to the intervention of the group creator, who provided the GroupMe application interface with the phone numbers of the newly added group members, including Plaintiff.
So, What is an Autodialer?
The Court decided two issues that have implications beyond the facts of this case. First, the Court decided that for purposes of liability under the TCPA, it is the present capacity of equipment to function as an autodialer, and not the potential capacity to perform such functions, which will determine whether or not equipment is an autodialer within the meaning of the statute. In support of its conclusion, the Court discussed a Western District of Washington case, on which we have previously reported, which had previously addressed the same issue and concluded that an interpretation of the autodialer definition based upon potential capacity would capture within its net many of contemporary society’s most common technological devices, including smartphones, an absurd result that the courts have sought to avoid. Note that if the Court had adopted Plaintiff’s “potential capacity” view, there would be no doubt that an autodialer was used, and the summary judgment motion would have been denied.
The second issue of general application discussed by the Court was the analysis of whether predictive dialers, which dial numbers from customer calling lists rather than dialing numbers randomly or sequentially, fall within the meaning and statutory definition of “autodialer.” The Court noted that the Federal Communications Commission (“FCC”) has made clear that predictive dialers do in fact fall within the definition of autodialers, and that the defining characteristic of an autodialer is not the ability to make calls randomly or sequentially, but instead it is the capacity to dial numbers without human intervention that matters, regardless of whether the numbers are randomly or sequentially generated or come from telemarketing call lists. In reviewing the facts at issue, the Court found that the GroupMe system sent the subject text messages only in response to user requests (i.e., in response to human intervention). Accordingly, the Court found that the GroupMe platform interface does not constitute an autodialer within the meaning of the TCPA.
Do Not Get Complacent In Thinking that Your Equipment is Not an Autodialer
The District Court’s opinion itself also offers a cautionary tale for marketers. In reaching its decision, the Court engaged in a lengthy factual analysis of the FCC’s history of issuing regulations that broadened the definition of autodialer such that now, in some jurisdictions, the key determining factor is whether the subject calling equipment has the present capacity to dial numbers without human intervention, even if that functionality is not actually used. As Courts and the FCC continue to debate the definition of what is and what is not an autodialer, it is imperative for text message marketers and telemarketers to engage experienced counsel to ensure their compliance with the TCPA and other applicable state and federal laws.