One of the most complex issues under the Telephone Consumer Protection Act (TCPA) is determining whether the technology utilized qualifies as an “automatic telephone dialing system” (ATDS) or “autodialer.” The TCPA prohibits using an ATDS to make calls to cell phone numbers, absent prior consent of the called party. An ATDS is generally define as equipments which has the capacity to store or generate telephone numbers randomly or sequentially and dial those numbers.
The U.S. District Court for the Southern District of California recently held that the electronic platform for sending promotional text messages was not an autodialer because it could not generate random or sequential numbers. While guidance from the Federal Communications Commission, as well as decisions at the district and circuit court level, have focused on whether a system has the capacity to generate and dial numbers without human intervention (even if the numbers came from a defined list, as opposed to randomly generated), the Court here distinguished such reasoning.
Here, the plaintiff joined defendant’s fitness center in 2012. The defendant utilized a 3rd-party, web-based platform to then send promotional text messages to members and prospective members on their cell phones. The system utilized could enter numbers manually; by collecting numbers individuals entered on the defendant’s website, or by collecting numbers when individuals responded via text message to marketing campaigns. The plaintiff allegedly received 3 unwanted text message and brought suit. Thereafter, the defendant moved for summary judgment asserting that the platform used with not an ATDS and the Court agreed.
Despite FCC guidance which states that equipment that can generate and dial numbers without human intervention would qualify as an ATDS, whether or not the numbers are randomly or sequentially generated, the Court found that the definition of ATDS within the statute is clear and unambiguous and the FCC does not have rule making authority. Agreeing with some other cases which have addressed this issue, the Court found that “capacity” means the systems current capabilities, not its “potential.” The Court said that focusing on “capacity” would subject a wide array of devices to the TCPA (e.g. all computers and smartphones).
As the defendant’s platform required human intervention, it was not an ATDS and thus the Court granted summary judgment in defendant’s favor.