In Blow v. Bijora, Inc., 2017 WL 1731494, at *6 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that the district court erred in granted summary judgment on the basis that no ATDS was used.

Citing cases that predate the FCC’s most recent rulings, Akira argues that Opt It’s software must be able to dial random or sequential numbers at the time the call is made and also function entirely “without human intervention.” As for the first argument, the FCC explicitly rejected such a requirement in its 2015 Order. See 2015 Order at 7074 (term “capacity” in the TCPA “does not exempt equipment that lacks the ‘present ability’ to dial randomly or sequentially.”) As the FCC rulings have recognized, technology has developed such that dialing from lists of numbers is more cost-effective than using random or sequential numbers. The FCC has now long recognized that “predictive dialers,” which have “the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers,” 2003 FCC Order at 14091 (emphasis added), are autodialers under the TCPA. In concluding as much, the FCC noted that “the principal feature of predictive dialing software is a timing function, not number storage or generation.Id. (emphasis added). Thus, “the basic function of such dialing equipment … [is] the capacity to dial numbers without human intervention.” In Re Rules & Regs Implementing the TCPA 23 FCC Rcd. 559, 566 (2008).  The parties dispute whether Opt It’s software is in fact capable of dialing numbers without human intervention. The district court relied on Stafford’s affidavit to conclude that Opt It’s software is not an autodialer because human involvement is required at nearly every step in the platform’s text message transmission process. But as Blow points out, the district court’s use of the word “nearly” demonstrates that human involvement is in fact unnecessary at the precise point of action barred by the TCPA: using technology to “push” the texts to an aggregator that sends the messages out simultaneously to hundreds or thousands of cell phone users at a predetermined date or time. Indeed, the FCC has recognized as much by sweeping automated dialing systems that dial numbers from a preprogrammed list, created by humans, within the reach of the TCPA’s prohibition on autodialed calls without prior consumer consent. Given the expansive definition of an autodialer adopted by the FCC, we agree with Blow that summary judgment on this issue for Akira was premature.

The ATDS ruling arguably was unnecessary and, thus, could be argued constituted dicta because the Court of Appeals found that the Plaintiff consented the receive the calls anyway and, therefore, there was an alternative basis to support the district court’s grant of summary judgment to the Defendant.

Instead, we turn to Akira’s argument (not reached by the district court) that it is entitled to summary judgment independent of the autodialer question because Blow consented to the text messages. . . .The record demonstrates that Blow gave her cell phone number to Akira on several different occasions. . . Blow’s attempt to parse her consent to accept some promotional information from Akira while rejecting “mass marketing” texts construes “consent” too narrowly. We agree with the Ninth Circuit’s recent conclusion that “an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages.” Van Patten, 847 F.3d at 1044–45. In Van Patten, the Ninth Circuit concluded that the plaintiff had given prior express consent to be contacted on his cell phone number when he provided that number in connection with his application for a gym membership. Id. at 1044. Although he had cancelled his gym membership when he received the challenged texts, the court concluded that the texts, which were part of a campaign to get former and inactive gym members to return, related to the reason the plaintiff had supplied his number in the first place: to apply for a gym membership. Id. at 1046. Thus, although the court rejected the defendant’s contention that when a consumer provides her cell phone number to the caller she is consenting to any and all contact, it reasonably concluded that if the contact is related to the reason the number was provided, consent is valid. Id. Likewise, the 11th Circuit rejected a plaintiff’s argument that he had not expressly consented to texts from a blood and plasma seller when he provided his cell phone number on a “New Donor Information Sheet” that he filled out before he was paid for blood and plasma donations. Murphy, 797 F.3d at 1304. Nowhere did the form he filled out with his cell phone number inform the plaintiff that he would receive a promotional text from the defendant offering him a “come back special” to donate again. Nevertheless, the court in Murphy concluded that by “voluntarily providing his cell phone number” to the defendant, the plaintiff gave his prior express consent to be contacted. Id. at 1308.  We have even less trouble concluding that Blow consented here, where she admittedly provided her cell phone number not on a generic form, but specifically in order to receive discounts. Both cards in the record containing Blow’s name and cell phone number clearly state that her information would be used to provide exclusive information and special offers. Of the sixty texts Blow received, one welcomed her to the text club, forty-one contained a promotional or discount offer, and the remaining eighteen announced special events such as fashion shows, events that fit comfortably within the aforementioned “exclusive information” described on the cards. Because the texts she received were reasonably related to the purpose for which she provided her cell phone number, we agree that Blow provided prior express consent for the text messages.

Blow v. Bijora, Inc., 2017 WL 1731494, at *8 (C.A.7 (Ill.), 2017)