In Keim v. ADF Midatlantic LLC,  2015 U.S. Dist. LEXIS 159070 (S.D. Fla. Nov. 9, 2015) (unpublished), Judge Marra denied a motion to dismiss based on the argument that human intervention disqualified the text message campaign engaged in by Pizza Hut. In Keim, consumers were encouraged to submit the cellphone numbers of their friends in exchange for Pizza Hut coupons, and where later Pizza Hut advertisements were sent en masse to the phone numbers that had been collected.  Also citing the “case-by-case” approach, among other issues, the court found that the equipment at issue could still potentially be an ATDS.

Defendants contend that Keim’s allegations cannot satisfy the autodialer element because his allegations demonstrate that the text messages could be sent only when “a person (i.e., a human being) . . . manually input into his/her cell phone the 10-digit cell phone number of the friend or acquaintance (i.e., Plaintiff) to whom the text is intended.” (DE 99 at 2.) . . . Defendants’ argument also must be rejected because Defendants contend only that human intervention is involved when the cell phone number is dialed, but they say nothing regarding the capacity of the equipment to dial numbers without human intervention. The FCC orders make clear that it is the capacity of the equipment, not its present use, that is the relevant inquiry.