On October 11, 2018, Judge Gershwin Drain of the Eastern District of Michigan granted the defendants’ motion for summary judgment, finding that the defendants’ text messaging system was not an automated telephone dialing system (ATDS) under the TCPA’ plain language.  Gary v. Trueblue, Inc., No. 17-cv-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018).  The defendants, TrueBlue, Inc., and its successor PeopleReady, Inc., are staffing companies that inform blue-collar workers of job opportunities in the local community through text messages.

The issue was whether the defendants’ messaging platform, WorkAlert, is an ATDS.  The defendants presented evidence that WorkAlert requires human intervention to search for recipients and compose the message.  Id. at *2-3.  WorkAlert operates in conjunction with a third-party aggregator, mBlox, which receives the text messages from WorkAlert and sends them to the recipients’ wireless carriers.  Id. at *4.  The plaintiff, Kevin Gary, argued that mBlox is fully automated so the combination of WorkAlert and mBlox creates TCPA liability for the defendants.  The plaintiff also contended that the combination violates the TCPA because WorkAlert and mBlox contain automated functions and send messages through a web browser.

Judge Drain rejected the plaintiff’s arguments.  First, he ruled that ACA International v. FCC, 885 F.3d 687, 691 (D.C. Cir. 2018), which set aside the FCC’s expansive definition of an ATDS, binds the court.  Id. at *7-8.  Therefore, Judge Drain applied the TCPA’s plain language.  He determined that, to constitute an ATDS, “a piece of equipment must have the capacity to (1) store or produce telephone numbers to be called, using a random or sequential number generator, and (2) dial such numbers.”  Id. at *10-11 (citing 47 U.S.C. § 227(a)(1)).

Second, he held that the plaintiff failed to show “that WorkAlert, when combined with mBlox, has the capacity to randomly or sequentially dial or text phone numbers.”  Id. at *10.  The evidence that the plaintiff presented about mBlox “in no way demonstrates that [it] has the capacity to randomly or sequentially dial or text phone numbers.”  Id. at *12.  Notably, the plaintiff did not join mBlox as a defendant, despite having the opportunity to do so, which would have entitled it to discovery on how the system operates.  Id. at *12-13.

Third, Judge Drain ruled that the TCPA’s plain language does not categorically prohibit the use of devices with automated functions or web-based browsers to send text messages.  Id. at *14-16.