District Court (Cal.) Finds No “ATDS” Used in TCPA-Text Message Case; Says “Human Intervention” Does Not Necessarily Mean the Actual Dialing of the Number, but Can Mean the “Conduct which Triggers the Dialing”

In Derby v. AOL, Inc., No. 15-CV-00452-RMW, 2015 WL 3466213, at *3-4 (N.D. Cal. June 1, 2015) amended at Derby v. AOL, Inc., No. 15-CV-00452-RMW, 2015 WL 3477658 (N.D. Cal. June 1, 2015), Judge Whyte dismissed Plaintiff’s TCPA case on a Motion to Dismiss.

This case arise arises out of three unsolicited text messages that plaintiff received through defendant’s AOL Instant Messenger (“AIM”) service, and a confirmation text from AOL to plaintiff following plaintiff’s request to block future messages from AIM. Dkt. No. 1 ¶ 18–20. Defendant AOL, a mobile social networking and internet company, operates an instant messaging system called AIM. Id. ¶¶ 6, 14. According to the complaint, sometime in the last several years AOL implemented the ability to send messages from AIM to cellular telephones via Short Message Services (“SMS”), also known as text messaging. Id. ¶¶ 11, 14. The system allows AIM users to input a mobile phone number on their computer and send that number a text message through AIM. Id. ¶¶ 14, 16. The system utilizes abbreviated phone numbers known as “short codes” to send the message, so when the recipient receives the text message, they can reply to the short code with a text message of his or her own. Id. ¶ 14, 15. AOL receives the response text sent to the short code and forwards it to the AIM user’s client on his or her computer. Id. ¶ 19, 20.  Plaintiff alleges that on or about June 15, 2014 he received three unsolicited text messages sent through AIM and intended for someone named Sy. Id. ¶¶ 18–20. Although the complaint does not so allege, presumably the three texts were the result of the sender inputting an incorrect phone number, which happened to be plaintiff’s. The messages listed the short code “265060” in the “from” field, which the complaint alleges is a short code operated by AOL. Id. ¶ 19. Plaintiff followed AOL’s instructions for blocking the transmission of such AIM text messages in the future by sending a text to the “265060” short code with the message: “block <[Name of AOL user]>.”¹ Id. ¶ 21. Immediately thereafter plaintiff received a response from AOL stating: “Messages from < [Name of AOL user]> have been blocked. To unblock, reply ‘unblock <Username>’ or reply ‘HELP’ for more options.” Id. ¶ 22. Plaintiff alleges that he never signed up to receive texts through AIM, and did not provide AOL or any of AOL’s users with consent to receive text messages. Id. ¶ 25.

The District Court found that no ATDS was used under the TCPA.

AOL argues that the complaint affirmatively alleges that AIM relies on human intervention to transmit text messages to recipients’ cell phones. Id. . . According to the complaint, plaintiff was sent an unsolicited text message when an AIM user “inputted a mobile phone number” and directed the system to send plaintiff a text message, the contents of which were composed by the AIM user. Id. ¶¶ 17–20. Furthermore, the complaint describes the AIM system as “designed … to rely on … mobile phone numbers inputted by its customers.” Id. ¶ 16.  Plaintiff responds by urging the court to draw a distinction between “conduct that triggers dialing” of a mobile phone number, and “the actual act of dialing” that number. Id. at 5. Plaintiff contends that where there is human intervention in the form of some conduct that prompts an automatic system to dial a number, the system qualifies as an ATDS. Id. However, plaintiff cites no authority for the distinction “between a human user who requests a call or message be sent on his behalf, and the entity that actually owns, uses, and operates the equipment that dials the phone number without human intervention.” Dkt. No. 22, at 1. The cases plaintiff does cite in support of his argument that AIM employs an ATDS are either distinguishable or support dismissal of his claims. . . The court also notes that at least two cases cited by plaintiff contradict plaintiff’s position in this case. See Johnson v. Yahoo!, Inc., Case No. 14–2028, 2014 WL 7005102 (N.D.Ill.Dec. 11, 2014); Glauser v. GroupMe, Inc., Case No. 11–2584, 2015 WL 475111 (N.D.Cal. Feb. 4, 2015). For example, the court in Johnson v. Yahoo!, Inc., unambiguously held that “[w]hen a user sends a personalized message to a contact, it is clear that that transmission involves human intervention.” 2014 WL 7005102, at * 5. The system at issue in Johnson allowed Yahoo users to send text messages to people in their contact lists by clicking the contact’s name and composing a message, and it was these messages that the court found clearly involved human intervention.  The court finds that the facts of Johnson closely parallel those in this case and support dismissal of Derby’s claim. Other courts have also found human intervention in circumstances involving far less user involvement and far more automation that alleged in the complaint in this case. In Gragg v. Orange Cab Co., the court found that a computerized taxi dispatch system did not qualify as an ATDS. 995 F.Supp.2d 1189, 1189 (W.D.Wash.2014). After a passenger requested a taxi with the system, drivers could “accept” the fare and agree to pick up the passenger. Once a driver accepted the fare, the system would compose and transmit a text message to the passenger informing him or her that the driver was on the way. Although the system composed and sent the text automatically, the court held that the system was not an ATDS because the driver’s input (pressing “accept”) was required before the system could draft and send the message. “The system is able to dial and transmit the dispatch notification only after the driver has physically pressed ‘accept’: human intervention is essential.” Id. at 1194. Similarly, in Marks v. Crunch San Diego, LLC, the court held that an SMS platform did not qualify as an ATDS where telephone numbers were uploaded to the texting system only through “human curation and intervention.” Case No. 14–348, 2014 WL 5422976, at *3 (S.D.Cal. Oct. 23, 2014). In sum, the court finds that the allegations of the complaint show that extensive human intervention is required to send text messages through defendant’s AIM service.  Accordingly, the court concludes that the complaint fails to state a claim for relief under the TCPA because the AIM system does not employ an ATDS, and GRANTS defendant’s motion to dismiss as to the three initial text messages sent by defendant’s AIM service.