In Luna v. SHAC, LLC dba Sapphire Gentlemen’s Club, here, Judge Lloyd granted summary judgment to a TCPA defendant who was accused of violating the TCPA for sending text messages to customers.
Shac operates the Sapphire Gentlemen’s Club in Las Vegas, Nevada. Shac engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (here, EXTexting.com) for sending promotional text messages to its customers. Andrews Decl., Exh. 1, at 19, 53-54; Exh. 2, at 68. Sending text messages through EXTexting.com involved multiple steps. First, an employee of Shac would input telephone numbers into CallFire’s web-based platform either by manually typing a phone number into the website, or by uploading or cutting and pasting an existing list of phone numbers into the website. See id., Exh. 1, at 71. In addition, Shac’s customers could add themselves to the platform by sending their own text messages to the system. See Exh. 1, at 69-72; Exh. 2, at 178. Next, the employee would log in to EXTexting.com to draft and type the message content. Id., Exh. 1, at 20, 142. The employee would then designate the specific phone numbers to which the message would be sent, then click “send” on the website in order to transmit the message to Shac’s customers. Id., Exh. 1, at 20, 139-41; see also id., Exh. 2, at 179-81. The employee could either transmit the messages in real time or preschedule messages to be transmitted “[a]t some future date.” Zelenski Decl., Exh. 1, at 186-88. As a result of this process, an allegedly unwanted text message was sent to Plaintiff, a customer of Shac, who had provided Shac with his cell phone number.
Judge Lloyd found that the FCC’s Orders were within the FCC’s statutory mandate, but that SHAC’s human intervention disqualified the sending of the texts from regulation by the TCPA, even post FCC Order. First, Judge Lloyd found that the FCC order was encompassed within its mandate.
Shac argues that even if the court were to agree that the above-cited FCC regulations expand the definition of ATDS, this expanded definition encompasses only predictive dialers, not web-based text messaging platforms, like the one at issue here. However, this district has held that these FCC regulations are not limited to predictive dialers. McKenna v. WhisperText, No. 5:14-CV-00424-PSG, 2015 WL 428728, at *3 (N.D. Cal. Jan. 30, 2015); Nunes v. Twitter, Inc., Case No. 14-CV-02843-VC, 2014 WL 6708465, at *1-2 (N.D. Cal. Nov. 26, 2014); Fields v. Mobile Messengers Am., Inc., Case No. 12-C-05160-WHA, 2013 WL 6774076, at *3 (N.D. Cal. Dec. 23, 2013). In addition, on June 18, 2015, the FCC voted on, and approved, FCC Chairman Tom Wheeler’s omnibus proposal under the TCPA. Wheeler’s “Fact Sheet” outlining the approved matters states, “as codified at 47 U.S.C. § 227(b)(2),” the “Telephone Consumer Protection Act explicitly empowers the Commission to enforce and interpret its consumer protection provisions,” to “review questions related to the meaning of the TCPA’s prohibitions,” and “to prescribe regulations to implement the statute.” First Notice of New Authority, Exh. 1, at 2. The FCC voted to “affirm” the current definition of “autodialer” “ensur[ing] the robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.” Id., Exh. 2, at 2; Exh. 1, at 1. In the Declaratory Ruling and Order following the FCC vote on June 18, 2015, the FCC reiterated that “[i]n the 2003 TCPA Order, the Commission found that, in order to be considered an automatic telephone dialing system, the equipment need only have the capacity to store or produce telephone numbers. The Commission stated that, even when dialing a fixed set of numbers, equipment may nevertheless meet the autodialer definition.” Second Notice of New Authority, Exh. 1 ¶ 12 (internal quotation marks omitted). “Internet-to-phone text messaging technology” is expressly included in the definition of “automatic telephone dialing system.” Id., Exh. 1 ¶¶ 111-16. Accordingly, the fact that CallFire’s system has the ability to send text messages from preprogrammed lists, rather than randomly or sequentially, does not disqualify it as an ATDS.
Second, Judge Lloyd found, however, that the Defendant’s human intervention disqualified it from regulation by the TCPA.
Second, Shac argues that it is entitled to summary judgment because the text message was sent as a result of human intervention. As indicated at the hearing, the parties do not dispute the law governing what constitutes “human intervention,” nor do they dispute the material facts as to what led up to Plaintiff receiving the text message. Rather, the parties dispute the application of the facts to the law. Shac argues that these undisputed facts constitute human intervention, while Plaintiff argues that they do not. In its 2008 ruling, the FCC indicated that the defining characteristic of an autodialer is “the capacity to dial numbers without human intervention.” 23 FCC Rcd. at 566. In 2012, the FCC further discussed the definition of “autodialer,” explaining that it “covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” 27 FCC Rcd. at 15392, n.5. Accordingly, the capacity to dial numbers without human intervention is required for TCPA liability. Glauser, 2015 WL 475111, at *6. Here, human intervention was involved in several stages of the process prior to Plaintiff’s receipt of the text message, including transferring of the telephone number into the CallFire database, drafting the message, determining the timing of the message, and clicking “send” on the website to transmit the message to Plaintiff. Shai Cohen, Shac’s person most knowledgeable, was involved in the process of sending Shac’s text messages via the EZTexting website. Andrews Decl., Exh. 1, at 19. Cohen testified that he inputted telephone numbers into CallFire’s web-based platform either by manually typing phone numbers into the website, or by uploading or cutting and pasting an existing list of phone numbers into the website. See id., Exh. 1, at 71 (“Q: And who at Shac actually inputted the numbers one by one? A: I have. Q: And who at Shac did the exporting, to the extent exporting was used, input numbers? A: I have. Q: And that’s also the case for uploading the numbers from a separate file? A: Yes.”). Cohen drafted and typed the message content. Id., Exh. 1, at 20 (“I would personally go into the website, log in, and type the message and send it off through their website.”); id., Exh. 1, at 142 (“I would upload the numbers into the system. Nothing here was done—nothing was automated. I personally created every one of these messages.”). Cohen personally clicked “send” on the website in order to transmit the messages to Shac’s customers, including Plaintiff. Id., Exh. 1, at 139-40 (“Q: . . . in order for the messages to be transmitted, you personally would have to log into the system and your own act of hitting ‘send’? A: No, 100 percent. I would personally type and send each one of those messages. Q: Right. So the message couldn’t go out unless you logged into the system? A: Correct. Q: And hit ‘send’? A: Correct.”); see also id., Exh. 2, at 179-81 (“[I]f contacts are not uploaded to the website and the customer does not hit the submit button and say send out these text messages, nothing happens.”). This case is similar to Glauser and McKenna v. WhisperText, No. 5:14-CV-00424-PSG, 2015 WL 428728 (N.D. Cal. Jan. 30, 2015). In Glauser, the court found that “GroupMe obtained the telephone numbers of the newly added group members . . . through the actions of the group’s creator” when the numbers were uploaded into the database. Glauser, 2015 WL 475111, at *6. The court in Glauser concluded that the text messages at issue “were sent to plaintiff as a direct response to the intervention of Mike L., the ‘Poker’ group creator.” Id. In McKenna, the court found that “Whisper App can send SMS invitations only at the user’s affirmative direction to recipients selected by the user.” McKenna, 2015 WL 428728, at *3-4. Accordingly, the court in McKenna held that “under such circumstances, the action taken is with human intervention—disqualifying the equipment at issue as any kind of ATDS.” Id. at *4. Plaintiff asserts that Glauser and McKenna “ruled that the act of uploading customer telephone numbers to a database constitutes human intervention.” Opp. at 16. Plaintiff argues that because these two cases “effectively eviscerate the FCC of its power to interpret the TCPA, they should be disregarded.” Id. Plaintiff urges the court to instead follow several cases that Plaintiff argues have held the contrary: Moore v. Dish Network, LLC, 2014 WL 5305960 (N.D. W. Va. Oct. 15, 2014); Davis v. Diversified Consultants, Inc., 36 F. Supp. 3d 217 (D. Mass. 2014); Sterk v. Path, Inc., 46 F. Supp. 3d 813 (N.D. Ill. 2014); and Griffith v. Consumer Portfolio Serv., Inc., 838 F. Supp. 2d 723 (N.D. Ill. 2011). Plaintiff’s argument fails. As an initial matter, the court finds that human intervention was involved in several stages of the process prior to Plaintiff’s receipt of the text message, and was not limited to the act of uploading the telephone number to the CallFire database, as Plaintiff argues. As explained above, human intervention was involved in drafting the message, determining the timing of the message, and clicking “send” on the website to transmit the message to Plaintiff. Moreover, all of the cases cited by Plaintiff were decided outside of this district, and are not binding on the court. They are also distinguishable. In Davis, the court found the predictive dialer in question to be an ATDS because the system’s default setting was for “sequential dialing,” and the court did not conduct a human intervention analysis. Davis, 36 F. Supp. 3d at 225-26. In Moore, the court found the system to be an ATDS based on the fact that the only human involvement was typing a list of numbers into software, which then automatically transferred them to dialer hardware, which in turn automatically made calls. Moore, 2014 WL 5305960, at *13. In Sterk and Griffith, the automated dialing system at issue uploaded lists of numbers from individual users and required no human intervention by defendant. Sterk v. Path, Inc., 46 F. Supp. 3d at 819-20; Griffith, 838 F. Supp. 2d at 727. Accordingly, because the court finds that the subject text message was sent as a result of human intervention, the court grants summary judgment in favor of Shac.