Court looks to plan language of the TCPA to determine whether or not the company’s dialing equipment is an ATDS.
10/25/2018 16:00
Gary v. TrueBlue, Inc., No. 17-CV-10544, 2018 WL ——- (E.D. Mich. Oct. 11, 2018)
Twice the consumer attempted to prove that the employment agency he had registered with used an ATDS to contact him after he had revoked his consent, both times he was unsuccessful. In his first attempt, the consumer claimed that the employment agency he signed up with contacted him via text messages sent by an ATDS after he had revoked his consent to be called. The consumer asserted that the WorkAlert texting platform used by the employment agency had the capacity to send text messages without human intervention and could independently dial numbers from a set list. The consumer stated that the WorkAlert system utilizes phone numbers from fixed lists titled “Smart Group” and “Fixed Group”. The “Smart Group” allows the user to save specific search parameters to search for a worker that matches the job requirements. The “Fixed Group” will save a specific list of workers until manually changed.
The employment agency denied the texting platform used was an ATDS and asserted that the consumer had continued to opt back into the system after he had opted out. The employment agency stated that branch employees search the company’s data base for workers in a specific area that have the requisite skills and can manually include or exclude specific persons from the group. The employee will then compose a text message to be sent to the group and once the message is complete will click send. According to the employment agency, these messages must be created by the branch employee and are not pre-written or form messages. The employment agency maintained that there is no technology that could be added to the system to have it dial automatically without human intervention.
In the first motion for summary judgement, the court found that, “the [consumer did] not demonstrate that the [texting platform used] is an ATDS as a matter of law because it sends text messages to a set list. To the contrary, [the employment agency] provided evidence that the texts [sent from the texting platform] to potential workers require human intervention, preventing the system from qualifying as an ATDS.” While the court denied the consumer summary judgment, it did find that several issues in the case were genuine disputes of material fact and granted the employment agency’s motion to compel the consumer’s deposition testimony.
On his second try the consumer thought he had found new proof that the employment agency’s dialing system was an ATDS. Through the discovery process, the consumer found that the employment agency’s texting platform worked in conjunctions with a third party aggregator called mBlox. This program receives the messages created using WorkAlert and then sends them to the recipient’s cell phone. The consumer claimed that this system is a fully automated texting system and because the WorkAlert system works in conjunction with this technology, the text messages it sends are covered under the TCPA.
Even though the employment agency did utilize the mBlox program to complete the text messaging process, the court still found that the system was not an ATDS. The court stated that, “there is no evidence in the record that WorkAlert and/or mBlox has the capacity to randomly or sequentially text numbers, as required by the plain language of the TCPA… Hence, [the employment company’s] use of these web-based messaging platforms does not automatically violate the statute.”
ACA International attorney member Dennis Barton III, managing attorney at the Barton Law Group , offered the following analysis of the court’s decision: “The Gary opinion is favorable, but we must always keep in mind that in this case, like many others, the specific facts governed its outcome. ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018) vacated portion of the 2015 FCC Order that included the definition of the term “capacity.” Unfortunately, though, the D.C. Circuit did not give a definition. It simply said the current FCC’s definition was too broad because it included a device that had the capacity to generate and dial random or sequential numbers and those that lacked the capacity.
The D.C. Circuit found such a definition was too broad and vacated it, but it did not state what the correct definition should be. In fact, it said it could be either but not both. The result is that courts must make such a determination until the FCC does so. To do so, courts like the one in Gary look to the language of the TCPA and to the portions of the 2015 FCC Order that were not vacated. For example, the FCC agreed that the TCPA does not apply to a device that requires human intervention. That has been a deciding factor embraced by other courts in post-ACA International cases finding a device to be an ATDS in absence of human intervention. See, e.g., Reyes v. BCA Financial Services, Inc., 312 F.Supp.3d 1308 (S.D. Fla. 2018); see also, e.g., Ammons v. Ally Financial, Inc., 326 F.Supp.3d 578 (M.D. Ten. 2018).
The lack of a specific definition reinforces the importance to view these matters on a case-by-case basis as to whether a collector’s device is an ATDS. Plaintiffs have the burden of proof on this issue. In Gary, the plaintiff could not produce evidence that True Blue’s device could store, produce, or randomly or sequentially dial phone numbers. In addition, the plaintiff’s evidence did not refute True Blue’s contention that human intervention was required.
While the FCC has ruled that internet-to-phone platforms may be ATDS, True Blue’s did not because of the human intervention that was required. Therefore, when evaluating the exposure of using a particular device or software, companies must fully understand and appreciate the extent to which that device has the ability to be converted to generate and dial random or sequential numbers even it if does not currently and the extent to which human intervention is required. The extent to which a plaintiff can prove the former and disprove the latter may determine the outcome of a TCPA case.”
Dennis Barton III may be reached at:
The Barton Law Group LLC
17600 Chesterfield Airport Road
Suite 201
Chesterfield, MO 63005
636-778-9520
If you want to learn more about the definition of an ATDS and other TCPA related issues, please review ACA’s SearchPoint document #9511 Telephone Consumer Protection Act (TCPA): Autodialers, Prerecorded Messages and Consent.
ACA International Members Attorney Program members interested in contributing their insights on a case for the Daily Decision Deep Dive may contact ACA International’s Communications Department at [email protected].