In Legg v. Voice Media Group, Inc.— F.Supp.2d —-, 2014 WL 2004383 (S.D.Fla. 2014), Judge Cohn denied summary judgment to both sides on whether an ATDS was used in a TCPA text message case.  The facts were as follows.

This suit arises from a series of unwanted text messages Defendant Voice Media Group, Inc. (“VMG”) allegedly sent to Plaintiff Christopher Legg in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. VMG operates alert services which transmit text-message advertisements to consumers’ cellular telephones throughout the United States. DE 1 ¶¶ 6, 19, 32. VMG contracts with a third party, Phaz2, Inc. (“Phaz2”), to handle the details and logistics of sending the text messages. DE 65–1 ¶ 1; DE 65–3 at 1. Individuals wishing to subscribe to VMG’s alert services send a text-message request to a “short code”-a type of telephone number used by companies to communicate with large numbers of consumers-maintained by Phaz2. DE 65–5 ¶ 5. Phaz2’s systems then store the individuals’ telephone numbers in a subscriber database. Id. The alert services also allow individuals to unsubscribe by sending the terms “STOP ALL” or variations of “STOP” to the short code. See DE 52–2 ¶ 9.  When VMG decides to send a message to its subscribers, VMG employees draft the substance of the message. DE 65–1 ¶ 4. The employees then input the message, the desired time of sending, and the intended categories of recipients into a software interface that communicates with Phaz2’s systems. DE 65–2 ¶¶ 5–6. When Phaz2 receives the message, it arranges for the message to be transmitted to the cellular telephones of the designated subscribers at the appropriate time. See DE 65–1 ¶ 5.  Legg subscribed to VMG’s alert services in 2012 and early 2013. DE 1 ¶¶ 20–25. In July 2013, however, Legg sought to unsubscribe by following VMG’s instructions to send text messages containing variations of the terms “STOP” and “STOP ALL” to its short code. DE 1 ¶¶ 26–29. Nevertheless, VMG allegedly continued to send text messages to Legg. Id. ¶¶ 27–30. On the basis of the unwanted text messages, Legg commenced this action for violations of the TCPA on September 20, 2013. Id. ¶¶ 43–50.FN1 Each party now moves for summary judgment in its favor.

The District Court found that Plaintiff failed to establish that an ATDS was used.

Legg suggests that the Court follow the guidance of the 2003 FCC Order to find that equipment can be an ATDS if it has the “capacity to dial numbers without human intervention,” regardless of its capacity to store or produce telephone numbers using a random or sequential number generator. VMG disagrees, arguing that the 2003 FCC Order’s conclusions are narrowly confined to situations involving predictive dialers, which are not implicated in this action. Subsequent to the 2003 FCC Order, however, numerous courts have drawn upon the Order for more than the narrow conclusion that a predictive dialer is an ATDS. Focusing on the FCC’s reasoning that the defining characteristic of an ATDS is the “capacity to dial numbers without human intervention,” these courts have found equipment to qualify as an ATDS if it can dial numbers automatically, for example by calling or sending text messages to numbers in a preprogrammed list, irrespective of the presence of a random or sequential number generator. See, e.g., Lardner v. Diversified Consultants, Inc., No. 13–22751, 2014 U.S. Dist. LEXIS 64205 at *15–16 (S.D.Fla. Apr. 30, 2014) (citing 2003 FCC Order to determine that “systems that automatically dial cell phone numbers from a preprogrammed list” fall within ATDS definition); Fields v. Mobile Messengers Am., Inc., No. 12–05160, 2013 U.S. Dist. LEXIS 180227 at *9–12 (N.D.Cal. Dec. 23, 2013) (citing 2003 FCC Order and finding that evidence of text messages sent without human intervention was sufficient to preclude summary judgment on whether ATDS was used); Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1129–30 (W.D.Wash.2012) (citing 2003 FCC Order to find that plaintiff sufficiently pled use of ATDS where he alleged facts suggesting automated transmission of text messages) FN2; Rivas v. Receivables Performance Mgmt., LLC, No. 08–61312, 2009 U.S. Dist. LEXIS 129378 at *12–13 (S.D.Fla. Sept. 1, 2009) (plaintiff created issue of fact on use of ATDS precluding summary judgment where evidence suggested “computer device that dialed Plaintiff’s number without human intervention”). But see Dominguez v. Yahoo!, Inc., No. 13–1887, 2014 U.S. Dist. LEXIS 36542 at *17–19 n. 6 (E.D .Pa. Mar. 20, 2014) (rejecting FCC guidance and finding that definition of ATDS “require[s] more than simply that the system store telephone numbers and send messages to those numbers without human intervention”). This Court likewise views the 2003 FCC Order as applying beyond the narrow circumstances of predictive dialers. In that Order, the FCC clearly expressed that an ATDS is defined by “the capacity to dial numbers without human intervention,” for example by calling numbers stored in a database. 18 FCC Rcd. at 14091–93. Though a predictive dialer may qualify as an ATDS under those criteria, the FCC’s reasoning is relevant beyond the narrow circumstances of predictive dialers.    Having determined that the FCC’s interpretation of an ATDS applies in this action, the Court nevertheless finds that Legg has failed to establish that VMG used such a system. The record does contain substantial evidence that VMG operates its alert services using automated means. VMG creates the content of text-message “scheduled broadcasts,” which it submits to Phaz2’s systems through a software interface. DE 65–2 ¶¶ 5–6. Phaz2 then sends these broadcasts to subscribers whose telephone numbers it stores in its databases. DE 65–2 ¶ 3. Draft documentation relating to Phaz2’s systems suggests that Phaz2 sends the broadcasts by automated means. See DE 86. The parties have also provided examples of VMG’s text messages which refer to the messages as “autodialed.” See DE 75–2 at 4.  However, this evidence does not paint a complete picture of the process VMG and Phaz2 use to send the messages. Although Legg points to documents purportedly describing Phaz2’s systems, he has not provided evidence linking those systems to messages sent on VMG’s behalf. For example, the record is devoid of testimony by a representative of Phaz2 confirming that the documents Legg relies upon accurately reflect the capabilities of its systems, or that it even used those systems in delivering VMG’s messages. Further, though it is true that Phaz2 sends “scheduled broadcasts” to individuals in a subscriber database, Legg has not shown that these broadcasts are transmitted without human intervention. It may be possible, if improbable, that Phaz2 employed individuals to transmit each broadcast at the predetermined time. Similarly, a reference to VMG’s messages as “autodialed” is not dispositive of whether the messages were sent using an ATDS within the meaning of the TCPA, and without human intervention. Viewing Legg’s evidence as a whole, the Court is unable to find that “no reasonable jury could find for [VMG]” regarding the use of an ATDS. See Rich, 716 F.3d at 530. Accordingly, Legg has failed to demonstrate his entitlement to a determination at the summaryjudgment stage that the system used to send VMG’s messages was an ATDS.

The District Court also found that the Defendant failed to establish that an ATDS was NOT used.

 Finally, VMG argues that Legg’s claims fail because the record is devoid of evidence that VMG’s text messages were sent using an ATDS. The record reflects, however, that Phaz2 sent VMG’s messages to subscribers in “scheduled broadcasts.” DE 65–2 ¶¶ 5–6. The broadcasts were sent to telephone numbers stored in a database of VMG’s subscribers. DE 65–5 ¶ 5. The documentation relating to Phaz2’s systems suggests that they were capable of sending the broadcasts automatically ( see DE 86), and indeed VMG and Phaz2 referred to certain of the text messages as “autodialed” ( e.g., DE 75–2). Drawing all inferences in Legg’s favor, a reasonable juror could find that VMG’s messages were sent using an automated, computerized system with the capacity to transmit the messages without human intervention-in other words, an ATDS. See Rivas, 2009 U.S. Dist. LEXIS 129378 at *12–13. The Court thus will deny VMG’s request for summary judgment regarding the involvement of an ATDS in sending its text messages.