Last week, a federal judge in the Northern District of California dismissed a putative class action lawsuit under the Telephone Consumer Protection Act (“TCPA”), ruling that an automated telephone dialing system or “autodialer” is not used when a third party group inviter has provided the number that resulted in the initiation of the automated text by a company to a consumer.
Plaintiff Brian Glauser sued the group messaging application GroupMe, alleging that GroupMe violated the TCPA when GroupMe transmitted two texts notifying Glauser that he had been added to a GroupMe group called “Poker.” Glauser argued that the group creator never asked GroupMe to send the texts, did not send the texts himself, and was not informed that the texts would be sent. GroupMe argued that the sending of the texts was triggered by the Poker’s group creator’s addition of Glauser to the group.
The court found that even if it were to accept Glauser’s description of the process by which the texts were sent, there was no basis for Glauser’s argument that the texts were sent without human intervention. In its 2003 TCPA Order, the Federal Communications Commission (FCC) described the “basic function” of autodialer equipment as having the “capacity to dial numbers without human intervention.” The court held that because GroupMe obtained group members’ numbers through the actions of the group’s creator, the texts were sent as a direct response to the intervention of the group’s creator and therefore did not violate the TCPA.
Before reaching the question of whether the conduct in question involved human intervention, the court examined two threshold issues: (1) whether TCPA liability depends on the present or actual capacity of a defendant’s equipment to function as an autodialer, as opposed to the potential capacity of that equipment function as autodialer, and (2) whether the TCPA’s definition of autodialer includes predictive dialers.
On the first question, the court examined existing Ninth Circuit precedent and found that the relevant inquiry is whether a defendant’s equipment has the present capacity to perform autodialing functions, even if those functions were not actually used. The court found that a “potential capacity” rule would improperly capture many of modern society’s most common devices such as smart phones and computers within the statutory definition. In addition, the court noted that the language of the TCPA discusses “capacity” in the present tense, because it refers “equipment which has the capacity . . . .” The court noted that FCC regulations and Ninth Circuit cases also refer to capacity in the present tense, and it therefore found the use of the present tense to be significant.
On the second question, the court found that the TCPA’s definition of autodialers includes predictive dialers. It noted that although the plain text of the TCPA and the FCC’s implementing regulations define autodialer as a random or sequential number generator, the FCC’s implementing regulations have expanded that definition, based on changes in technology, to include predictive dialers.
In a separate argument, Glauser sought to establish that GroupMe’s conduct violated the TCPA even if GroupMe did not use an autodialer: Glauser alleged that the texts he received were “artificial prewritten text messages” and thus constituted an “artificial or prerecorded voice” in violation of the TCPA. The court rejected this argument, noting among other reasons, that Glauser presented no authority for the argument that a text message can have a “voice”—artificial, prerecorded, or otherwise.