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As TCPAland residents know well by now, the decision in ACA Int’l has left courts searching for direction on how best to apply the Telephone Consumer Protection Act’s (“TCPA”) definition of automated telephone dialing system. (“ATDS.”) Although the FCC is set to issue a definitive ruling on this subject following its Public Notice on the TCPA, courts appear reluctant to stay cases and wait FCC guidance and have elected to go it alone despite considerable uncertainty on the subject.

There are several moving pieces here. First, did the FCC’s 2003 and 2008 Predictive Dialer Rulings survive ACA Int’l? If so, how do those rulings–especially the human intervention discussion–apply in non-predictive dialer cases? And more specifically, when in the process of the completion of a call does the human intervention need to take place?

Last Thursday, TCPAland received its latest ruling on the subject when a district court in Florida held that the “human intervention” functionality requirement embedded within the 2003 FCC Predictive Dialer ruling survived ACA Int’l, dooming Plaintiff’s TCPA claims related to a bulk text message campaign that included certain manual elements.

In Ramos v. Hopele of Fort Lauderdale, CASE NO. 17-62100-CIV-MORENO/SELTZER, 2018 U.S. Dist. LEXIS 139947 (S.D. Fl. Aug. 16, 2018) Magistrate Judge Barry Seltzer faced cross-motions for summary judgment related to text messages advertising a sale of Pandora jewelry.  The Plaintiff argued that the text messages were sent using an automated text message platform without consent. The Defendant argued that the texts were sent with sufficient manual (human) intervention to remove the text platform from TCPA coverage. And so the battle lines were clearly fixed.

The first stage of the court’s analysis–as it always seems to be nowadays–was determining whether the FCC’s 2003 and 2008 Predictive Dialer Rulings remain viable post ACA Int’l. The courts have struggled mightily with this issue. But the Ramos case quickly and decisively sides with the “yes they survived” camp– “The ACA decision invalidated portions of the 2015 Order, but left intact the FCC’s prior orders.” Ramos at *15.  Interestingly, and similar to the Hon. Jerome B. Simandle’s pair of decisions a couple weeks back, the Ramos case reads Dominguez and supportive of the 2003 and 2008 FCC Predictive Dialer rulings because Dominguez states “we interpret the statutory definition of an autodialer as we did prior to the issuance of [the] 2015 Declaratory Ruling.” See Ramos at *15 citing to Dominguez at 119.

As we’ve remarked and discussed, citing to Dominguez in support of the 2003 and 2008 Predictive Dialer rulings seems a bit odd considering the Third Circuit Court of Appeal held directly that random or sequential number generation are the required functionalities of an ATDS–a holding necessarily contrary to the application of the 2003 and 2008 orders. But no matter.

The Ramos Court next goes on to refine the ATDS formulation contrary to Dominguez  and Lord as “cover[ing] any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” Ramos at *17-18. Ramos has little trouble finding, therefore, that “compiling a list of numbers into a database does not remove a calling system from the definition of an ATDS.” Id. at *18.

But the Court does not agree that human intervention must occur “at the exact moment a text is sent.” And this is where things get interesting (and challenging for fans of clear and actionable legal guidance.) Ramos determines that “[w]hat constitutes the amount of ‘human intervention’ required to take a device out of the category of an autodialer is a mixed question of fact and law.” Id. at *19.  And in reviewing the evidence before it the Court is convinced that the text messages at issue were NOT sent using an ATDS owing to the following facts:

-The EZ-Texting system cannot send a text without a person physically inputting numbers, drafting a message, selecting recipients, choosing a date and time to send the message, and manually hitting a “send” button

-Defendant manually curated the list of customers who he wished to receive the marketing texts, scrubbed out landlines, drafted the text message, chose the date and time he wanted the message sent, and hit the “send” button

-If Defendant had not ultimately pressed “send’ to authorize the EZ-Texting platform to send the text message, nothing would have occurred and no text message
would have been sent

Notably, however, it seems that most text message telemarketing campaigns are going to require someone to select phone numbers and press the “send” button.  Indeed, this was the logic famously applied in Luna v. Shac, LLC, 122 F. Supp. 3d 936, 940 (N.D. Cal.
2015), a case that has drawn some criticism. Nonetheless Ramos draws a firm line between the texts at issue there and–for instance–automated alert text messages of the sort at issue in Zeidel v. A&M (2015) LLC, 2017 WL 1178150, at *10 (N.D. Ill. Mar. 30, 2017).

It is probably best for text message transmitters not to get too excited about Ramos. Although the Court was satisfied on the evidence before it that the campaign at issue was sufficiently “manual” to justify judgment to the defense, ACA Int’l itself expressed doubts regarding the vague “human intervention” functionality standard the FCC articulated back in 2003, which served as the lynchpin for the ruling in Ramos. And even if human intervention remains the guiding standard, determining precisely what qualifies as sufficient intervention and when in the process  of transmitting a message the relevant intervention must occur remains much more of an art than a science.  Indeed, like beauty, human intervention appears to be in the eye of the beholder.