In Duran v. La Boom Disco, Inc., No. 19-600-cv, 2020 U.S. App. LEXIS 10861, at *16-22 (2d Cir. Apr. 7, 2020), the Court of Appeals for the Second Circuit followed the 9th Circuit’s decision in Marks.
The next question is whether the ExpressText and EZ Texting programs also have the second capacity required by the statute to be ATDSs—the “capacity . . . to dial such numbers.” The FCC has stated that this capacity exists when the dialing system can “dial numbers without human intervention.” Indeed, this ability to dial without human intervention is an ATDSs'”basic function.” But determining how much human intervention is too much for a system to qualify as an ATDS is not always easy. Any system—ATDSs included—will always require some human intervention somewhere along the way, even if it is merely to flip a switch that turns the system on. LBD argues that the programs at issue can only dial with a level of human intervention that makes them non-automatic. Specifically, LBD argues that the programs are not ATDSs because they require a human to upload the message to be sent, to determine the time at which the message gets sent, and to manually initiate the sending. The District Court agreed, finding the second factor—that a human determined the time at which the messages were sent out—to be dispositive. Duran argues, to the contrary, that the programs do not dial with “human intervention,” but do so automatically. Even though a human manually initiates the text campaign and determines the time at which the campaign takes place, the actual dialing—the connecting of one phone to another—occurs entirely by machine. Therefore, by his interpretation, the programs are both ATDSs. We are thus asked to decide how much intervention is tolerable under the statute before an ATDS becomes a non-ATDS. We conclude that Duran is correct, and that the programs here are both ATDSs. (a) In trying to develop some criteria for what constitutes too much human intervention, the District Court decided that the most important factor was whether a human determined the time at which a dialing system sent out a call or text. It derived this factor, it said, from the FCC’s 2003 Order—the very one that interpreted the TCPA to cover “predictive dialers,” which call from stored lists of numbers. According to that Order, “the principal feature of predictive dialing software is a timing function,” as predictive dialers dial “at a rate to ensure that when a consumer answers the phone, a sales person is available to take the call.” Thus, the District Court seems to have concluded that the principal feature of all ATDSs must also be a timing function—or else predictive dialers would not be considered ATDSs. Indeed, it stated that “the human-intervention test turns not on whether the user must send each individual message, but rather on whether the user (not the software) determines the time at which the numbers are dialed.” We do not agree that the human-intervention test turns solely on this timing factor. While it may be true, as the 2003 Order states, that the key feature of [*19] a predictive dialer is a timing function, the programs used by LBD here are not predictive dialers, a fact that the District Court readily acknowledges. Therefore, any controlling reliance on the fact that LBD’s programs do not automatically determine the time at which messages are sent out is misplaced. The District Court, in stressing the importance of the “timing function” to the human-intervention test, seems to imply that only predictive dialers can be considered ATDSs. But the TCPA predates the use of predictive dialers—which is exactly why the FCC felt compelled to specify its application to this new technology in 2003. To assume that a key feature of predictive dialers must be a key feature of all ATDSs, especially when we know that many early ATDSs did not have the ability to automatically determine the time at which a call or text would get sent out, is anachronistic at best. (b) There must be some other criterion, then, that guides the “human intervention” analysis. To locate one, we look to the statutory text and the FCC’s commentary, which both specify that an ATDS is different from a non-ATDS merely because of its ability to “dial” numbers automatically or, as the FCC has put it, without human intervention. But what does it mean to dial? Dialing a phone, after all, is not the same as it used to be. Although the verb “to dial” may have originally meant to rotate an actual dial, it is more commonly used today to refer to the specific act of “inputting” some numbers to make a telephone operate, and to connect to another telephone. By 2014, the Oxford English Dictionary was able to confirm this common usage, noting that to dial generally means “[t]o enter (one or more digits or letters) by turning the disc of a telephone dial or (later) by pushing buttons on a keypad or touch screen to make a telephone call[.]” Merely clicking “send” or an equivalent button in a text messaging program—much like the programs at issue here—is not the same thing as dialing a number. When a person clicks “send” in such a program, he may be instructing the system to dial the numbers, but he is not actually dialing the numbers himself. His activity is one step removed. Indeed, if it were otherwise—if merely clicking “send” on its own amounted to dialing—then it is hard to imagine how any dialing system could qualify as automatic. Presumably, when one uses a dialing system, a “send” button or an “initiate phone campaign” button—or even merely an “on” switch—must be operated by a human somewhere along the way. Under LBD’s approach, any such operation might be enough to remove the dialing system from the ATDS category, since there would be too much human intervention for the dialing system to be truly automatic. But this approach seems to defy Congress’s ultimate purpose in passing the TCPA, which was to embrace within its scope those dialing systems which can blast out messages to thousands of phone numbers at once, at least cost to the telemarketer. We thus recognize that clicking “send” or some similar button—much like flipping an “on” switch—is not the same thing as dialing, since it is not the actual or constructive inputting of numbers to make an individual telephone call or to send an individual text message. Clicking “send” does not require enough human intervention to turn an automatic dialing system into a non-automatic one. Accordingly, since the programs here required only a human to click “send” or some similar button in order to initiate a text campaign, we conclude that the programs did not require human intervention in order to dial. Therefore, [*22] LBD’s programs have the second capacity necessary to be considered ATDSs. They both can dial numbers on their own—which is to say, automatically.