In Jenkins v. MGage, LLC, 2016 WL 4263937, at *5–7 (N.D.Ga. 2016), the District Court found that the human intervention required to trigger the sending of text messages disqualified Defendants’ text-message system from constituting an ATDS.
Defendants argue they are entitled to summary judgment because the text messages were sent as the result of human intervention, and thus were not sent by an autodialer. In support of their argument, they rely primarily on the Northern District of California’s decision in Luna. In Luna, the court granted summary judgment to a defendant that sent text messages using a web-based system very similar to the Platform at issue here. In reaching its conclusion, the Luna court, after thoroughly reviewing the FCC’s 2003, 2008, and 2015 Orders, noted the FCC has “indicated that the defining characteristic of an autodialer is the capacity to dial numbers without human intervention.” Id. at 940 (internal quotation marks omitted). Turning to the system operated by the defendant, the Luna court observed that “human intervention was involved in several stages of the process prior to Plaintiff’s receipt of the text message, including transferring the 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.” Id. The court concluded the text messages at issue were sent as a result of human intervention, and granted summary judgment in favor of defendant. Id. at 941-42. Here, the same types of human intervention were required to send the text messages to Plaintiff. It is undisputed that, to send promotional messages, an Opera employee had to: (i) navigate to a website; (ii) log into the Platform; (iii) determine the content of the text message; (iv) type the content of the text message into the Platform; (iv) determine whether to send the text message immediately or to schedule a later date to send the message; (v) either click “send” to send the message immediately, or take action to select a later date and time to send the message by using a drop-down calendar function. (See DSOMF ¶¶ 63-65, 67, 70, 71-74). Opera also determined the telephone numbers to which text messages were sent by an employee choosing a particular list of numbers and uploading the list to mGage’s Platform as a CSV file. (Id. ¶¶ 76-78). Plaintiff attempts to distinguish Luna. Plaintiff first argues the texting system in Luna “required an employee to manually type a phone number into the website, or manually uploading [sic] (by cutting or pasting those numbers into the website), manually designating which phone numbers to which text messages would be sent,” whereas here Opera loaded a list of numbers onto the Platform and, in addition, customers could sign up to join the list. (  at 6). The Luna court, however, noted that an “existing list of phone numbers” could be “upload[ed]” into the website, and that, additionally, “customers could add themselves to the platform by sending their own text messages to the system.” 122 F. Supp. 3d at 937. This description appears to be nearly identical to how Opera operated the Platform at issue here. . . Plaintiff next argues that, if the Court were to adopt the Luna court’s reasoning, it would ignore the 2015 FCC Order. First, the 2015 FCC Order “is not dispositive of the present case because the FCC issued its ruling after the [text messages] in question….” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1246 (11th Cir. 2014). Second, the Luna court thoroughly discussed the 2015 FCC Order, and concluded the level of human intervention required to send text messages precluded liability. See 122 F. Supp. 3d at 939-40. Third, Plaintiff ignores that the 2015 FCC Order underscored that a defining characteristic of an autodialer is the ability to dial numbers without human intervention. See 30 FCC Rcd. 7961 ¶ 17. As the court in Derby v. AOL, Inc. observed, the 2015 FCC Order “does not suggest that a system that never operates without human intervention constitutes an ATDS under the statute. To the contrary, the 2015 [FCC] 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.” No. 5:15-CV-00452-RMW, 2015 WL 5316403, at *4 (N.D. Cal. Sept. 11, 2015), appeal dismissed (Mar. 18, 2016) (internal quotation marks omitted, emphasis in original). The importance of the human intervention element is supported by the decisions of other courts, including courts in our Circuit, that have acknowledged that the FCC’s orders require that, “[t]o determine whether a dialer is a predictive dialing system, and therefore an ATDS, the primary consideration is whether human intervention is required at the point in time at which the number is dialed.” Strauss v. CBE Grp., Inc., ––– F. Supp. 3d –––, 2016 WL 1273913 (S.D. Fla. Mar. 28, 2016) (internal quotations and ellipsis omitted); see also Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1373 (S.D. Fla. 2014) (explaining that “defining characteristic” of ATDS is “capacity to dial numbers without human intervention”). Here, direct human intervention is required to send each text message immediately or to select the time and date when, in the future, the text message will be sent. . . The Court finds the Luna court’s reasoning sound and consistent with the reasoning of other courts’ findings that human intervention discredits that a communication system is an ATDS. The Court finds that, in this case, the uncontested evidence shows human intervention was required to send each text message. “In sum, [Plaintiff’s] claims fail as a matter of law because [s]he failed to establish a genuine issue for trial with respect to whether the [texts] were [sent] using an ATDS, a necessary element of [her] claims.” Gaza v. LTD Fin. Servs., L.P., No. 8:14-CV-1012-T-30JSS, 2015 WL 5009741, at *4 (M.D. Fla. Aug. 24, 2015). Defendants’ Motion is granted.