True Blue!: Yet Another Court Finds FCC’s TCPA Orders Were Vacated by ACA Int’l and Calls to Lists of Numbers Not Robocalls Covered by the TCPA

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In a new district court opinion out of the E.D. District of Michigan a court found yesterday that dialers calling from a list do not qualify as automated telephone dialing systems (“ATDS”) under the TCPA unless they generate numbers randomly or sequentially. See Gary v. TrueBlue, Inc., Case No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018). The Court also expressly held that the 2003 and 2008 FCC Predictive Dialer Rulings were set aside by ACA Int’l and that “automated” text messages do not trigger TCPA coverage unless sent randomly or sequentially. This decision dovetails nicely with last week’s big ruling in Pinkus and further undermines TCPA cases focused on dialers that call from lists, rather than from randomly or sequentially generated numbers.

In Gary the Plaintiff allegedly received a flood of employment-related text messages without his consent. Plaintiff moved for summary judgment arguing that there was no dispute that the texts were sent automatically, from a list, and without human intervention. Defendant countered that the texts were not sent using a random or sequential number generator and, thus, were not covered by the TCPA. The Court quickly recognized that the outcome of the case turned on whether or not the FCC’s previous TCPA guidance remained viable post ACA Int’l

Accordingly, the Gary court begins its analysis walking through the history of the TCPA and various FCC rulings including the 2003 and 2008 Predictive Dialer Rulings dealing with human intervention. After analyzing the interplay between those rulings, the FCC’s 2015 TCPA Omnibus, and ACA Int’l the Gary court concludes that ACA Int’l did, in factvacate all of the FCC’s “orders regarding the definition of an ATDS.” The Gary court goes on to follow Marshall and concludes that it must independently review the statutory language as a result. And from there the fate of Plaintiff’s motion was sealed.

The court points out that the TCPA defines defines an ATDS narrowly as “equipment which has the capacity—to store or produce numbers to be called, using
a random or sequential number generator.” 47 U.S.C. §
227. And, rather critically, “the statute never mentions a capacity to dial from
a set list.” Gary at *7. Since Plaintiff presented no evidence that the Defendant’s dialer randomly or sequentially generated numbers, the Plaintiff’s motion for judgment was denied.

Moreover the court squarely rejected Plaintiff’s alternative argument that the texts were actionable because they were dialed without human intervention. In the court’s view the fact that the messages were worked by live agents was enough human intervention to qualify–even if the FCC’s 2003 and 2008 Orders were still viable:

Even when using a fixed group, branch employees must manually edit the list of workers to fit a particular job assignment, craft an outgoing text message, and then click certain keys to send a message. This level of human judgment and intervention precludes a system from falling under the definition of an ATDS.

Finally, the court also rejected Plaintiff’s argument that texts sent “automatically” automatically violate the TCPA (so clever.) Again the rationale is straightforward: “automatic” calls for purposes of the TCPA are those of a specific sort– calls made to numbers derived via random or sequential number generation.

Accordingly, we see the TCPA landscape continuing to shift away from the continued viability of the 2003 and 2008 predictive dialer rulings and toward the requirement of random or sequential number generation. While Gary is not a predictive dialer case, it directly rejects the continued viability of the FCC’s earlier ATDS rulings and requires adherence to the statutory functionalities. Gary’s broad read of human intervention is also very helpful for defendants–many cases focus on human intervention at the time the call is launched. But Gary applies the analysis of the old Luna v. Shac, 122 F. Supp. 3d 936 (N.D. Cal. 2015) decision and treats human intervention surrounding the call campaign as sufficient to remove the calls from TCPA coverage. As always, more to come.

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