A recent decision out of the Northern District of California creates new hope for TCPA defendants. In Luna v. Shac, LLC, Case No. 5:14-cv-00607-HRL, 2015 WL 4941781 (N.D. Cal. Aug. 19, 2015), defendant Shac, LLC won summary judgment by arguing that the web-based application the company used to send promotional text messages could not operate without human intervention, a “defining characteristic” of an autodialer under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1).
The FCC made leeway for this decision in its July 10, 2015 declaratory ruling, which stated that “how the [TCPA’s] human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment . . . and is therefore a case-by-case determination.” FCC 15-72 at 15. Taking his cue from the FCC, the judge conducted a fact-intensive analysis that focused on how Shac’s employee interacted with the web-based text messaging platform at various stages of the process. The manual nature of the process, which required human intervention as several points, ultimately led to Shac’s victory.
The at-issue text messages were sent as follows: First, an employee of Shac would input telephone numbers into the platform, either by manually typing the numbers, cutting and pasting, or uploading them. Shac’s customers could also add themselves to the platform by sending text messages to the system. Second, a Shac employee would log into the platform to draft the text message. Third, the employee would designate the phone numbers to which the message would be sent. And fourth, the employee would click “send” to transmit the message to Shac’s customers. Id. at 2. Thus, human intervention was involved in nearly every step of the text-sending process. Because “the subject text message was sent as a result of human intervention,” and “the capacity to dial numbers without human intervention is required for TCPA liability,” the Court held that Shac was entitled to summary judgment. Id. at 7, 9 (emphasis added).
The Shac decision offers a ray of hope to Defendants seeking to show that the equipment they are using does not fall within the TCPA’s definition of an autodialer. While it remains to be seen whether other judges will similarly apply the FCC’s July ruling, the Shac decision has the potential to set the tone for other courts. We will be watching to see if this line of defense gains ground and keep you posted.