In Derby v. AOL, Inc., 2015 WL 5316403, at *4-6 (N.D.Cal., 2015), Judge Whyte dismissed a TCPA claim challenging AOL’s AIM and the Plaintiff’s receipt 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.  Judge White found that a system that never operates without human intervention is not an ATDS under the TCPA.

The FCC’s order does not suggest that a system that never operates without human intervention constitutes an ATDS under the statute. To the contrary, the 2015 TCPA Order reiterates that “the basic functions of an autodialer are to ‘dial numbers without human intervention,’ and to ‘dial thousands of numbers in a short period of time.’ ” Id. ¶ 17 (emphasis added). Accord Luna v. Shac, LLC, No. 14–cv–00607–HRL, 2015 WL 4941781 (N.D.Cal. Aug. 19, 2015) (granting summary judgment for defendant on TCPA claim because subject text messages were sent due to human intervention).  The facts alleged in the FAC do not show that the AIM system has the capacity to operate without human intervention and without user consent. As explained above and in this court’s prior order, each of the factual scenarios alleged in the FAC–sending messages to the wrong recipient, confirming someone’s request to opt out, sending an automatic reply for a user who has logged off, and sending a user status update–are triggered by some form of human action.  Plaintiff also argues that the 2015 TCPA Order renders the cases cited in support of this court’s prior dismissal order inapposite. Dkt. No. 38 at 10–12. The court disagrees. As explained above, the 2015 TCPA Order does not eliminate the requirement that an autodialer under the TCPA operate without human intervention.  Aside from the issue of “capacity,” plaintiff argues that the court should revisit its prior dismissal order because the FCC’s 2015 TCPA Order clarified that express consent is required to shield an ATDS from liability for sending a reply to an opt-out request. Dkt. No. 38 at 16 (citing 2015 TCPA Order ¶ 106). Plaintiff acknowledges paragraph 52 of the 2015 TCPA Order, which states that consent is demonstrated by providing one’s telephone number:  “For non-telemarketing and non-advertising calls, express consent can be demonstrated by the called party giving prior express oral or written consent or, in the absence of instructions to the contrary, by giving his or her wireless number to the person initiating the autodialed or prerecorded call.” Plaintiff argues that the only time he provided his phone number to AOL was as part of a request to opt out–an “instruction” evidencing a lack of consent. Dkt. No. 38 at 16.  Properly read, however, the 2015 TCPA Order does not suggest that confirming plaintiff’s opt-out request violated the TCPA. The FCC noted that the law should be read to “fulfill[ ] Congress’s intent that the TCPA not prohibit normal business communications” and that “providing one’s phone number evidences prior express consent to be called at that number, absent instructions to the contrary.” 2015 TCPA Order ¶ 76. A confirmation message is not the type of harm–”the nuisance, invasion of privacy, cost, and inconvenience” of autodialed calls– that the TCPA was intended to address.4 Id. ¶ 29. Plaintiff cites Reardon v. Uber Techs., Inc. in support of his argument that this court should follow the FCC’s interpretations of the TCPA, but that case actually held that providing one’s phone number, in certain circumstances, constitutes consent to be contacted. Reardon v. Uber Techs., Inc., No. 14–05678–JST, 2015 WL 4451209, at *7 (N.D.Cal. July 19, 2015) (“any plaintiff who provided her phone number as part of the Uber application process consented to receive Uber’s texts about becoming an Uber driver”).  Plaintiff’s characterization of AIM as an “internet-to-phone text message service,” Dkt. No. 38 at 12–13, does not change the court’s conclusion that plaintiff has failed to state a claim. Plaintiff quotes paragraph 108 of the 2015 TCPA Order for the proposition that “[i]nternet-to-phone text messages, including those sent using an interconnected text provider, require consumer consent.” As defendant points out, such a system “involves ‘messages [that] originate as electronic mail (e-mail) sent to a combination of the recipient’s unique telephone number and [the] wireless provider’s domain name.’ ” Dkt. No. 40 at 5 (quoting 2015 TCPA Order ¶ 108 n.369). The FAC does not allege that AIM operates in this manner. In any event, even if the FAC had alleged that AIM has the characteristics of an internet-to-phone text message service, the only messages plaintiff allegedly received that would not have been subject to some kind of consent were the initial three messages intended for “Sy.” As this court previously found, “had an AIM user not inputted plaintiff’s mobile phone number, composed a text message, and directed AIM to send it to plaintiff, he would not have received the text messages at issue.” Dkt. No. 28 at 7.  In summary, the 2015 TCPA Order does not support plaintiff’s argument that the FAC adequately states a claim on which relief can be granted, and the arguments plaintiff raises in opposition to dismissal are unpersuasive.