In Gary v. TrueBlue, Inc., 2018 WL 3647046, at *6–8 (E.D.Mich., 2018), Judge Drain denied a TCPA Plaintiff’s Motion for Summary Judgment on the basis that he had failed to prove that the text messages that he received were sent by means of an ATDS.
Plaintiff argues that WorkAlert is an ATDS because WorkAlert can both (1) dial numbers from a set list (through the “smart” or “fixed” group functions) and (2) reply to text messages instantaneously without human intervention. Yet the Court finds that Plaintiff fails to establish that these characteristics make the system an ATDS as a matter of law.  b) Dialing from a Set List.  Plaintiff asserts that when a branch employee sends a text message to a group of potential workers using a “fixed group,” WorkAlert is dialing a set list of numbers in violation of the TCPA. See 30 FCC Rcd 7961, 7974 (F.C.C. July 10, 2015). When a branch employee runs a search of the worker database to find persons who fit criteria relevant to a particular job assignment, the employee can save the resulting list of workers in a fixed group. Dkt. No. 21-9, pg. 7 (Pg. ID 209). When another job opportunity requires the same criteria, the branch employee can simply pull up the fixed group instead of running a new search. Id. Plaintiff claims that when WorkAlert sends a text message using a fixed group, it is dialing from a set list of numbers, thus making it an autodialer pursuant to the FCC’s 2003 and 2015 orders. Dkt. No. 33, pg. 9 (Pg. ID 391). The Court finds that this argument lacks merit.  To begin, the relevant portion of the 2015 FCC Order was vacated in ACA Int’l, and so that order no longer binds this Court. See ACA Int’l, 885 F.3d at 703 (“[T]he Commission’s ruling, in describing the functions a device must perform to qualify as an autodialer, fails to satisfy the requirement of reasoned decisonmaking.”). Specifically, the ACA Int’l court found that the FCC 2015 order supported two competing interpretations of an autodialer. Id. On the one hand, the 2015 order indicated that to qualify as an ATDS, a device must be able to generate and dial random or sequential numbers. Id. at 702.   On the other hand, the order reaffirmed the Commission’s previous rulings, which supported a conflicting position: that a device can be considered an autodialer even if it can only dial numbers from an externally supplied list. Id. The D.C. Circuit held that “the Commission cannot … espouse both competing interpretations in the same order.” Id. at 703. Applying ACA Int’l, the FCC’s rulings—including the ATDS definition which covered equipment that can only dial numbers from a set list—are no longer valid. See Sandusky, 863 F.3d 460.   Because the ACA Int’l decision vacated the FCC’s orders regarding the definition of an ATDS, the Court must examine the statutory language. See Marshall, 2018 WL 1567852, at *5, 2018 U.S. Dist. LEXIS 55223, at *12 (“[T]he Court will not stray from the statute’s language….”); see also Herrick, 2018 WL 2229131, at *8, 2018 U.S. Dist. LEXIS 83744, at *19 (noting and adhering to the “more limited” statutory definition of an ATDS).  The Act defines an ATDS as “equipment which has the capacity—to store or produce numbers to be called, using a random or sequential number generator.” 47 U.S.C. § 227. The statute never mentions a capacity to dial from a set list. Plaintiff does not allege that WorkAlert has the capacity to store or produce numbers using a number generator,4 and nothing in the record could support such a claim. Therefore, adhering to the plain language of the TCPA and viewing the facts in the light most favorable to the Defendant, the Court finds that WorkAlert does not qualify as an ATDS as a matter of law.  But even if the Court were to follow the FCC’s now-vacated and broad classification of an ATDS, Plaintiff fails to show that WorkAlert is an ATDS as a matter of law. An autodialer, as defined by the relevant FCC orders, must have the capacity to dial from a set list without human intervention: “the Commission has also long held that the basic functions of an autodialer are to dial numbers without human intervention….” 30 FCC Rcd 7961, 7975 (F.C.C. July 10, 2015) (internal quotation marks omitted); see also Glauser v. GroupMe, Inc., 2015 WL 475111, at *6, 2015 U.S. Dist. LEXIS 14001, at *17 (N.D. Cal. Feb. 4, 2015) (citing FCC’s 2008 and 2012 TCPA orders and concluding that “while the capacity for random/sequential dialing is not required for TCPA liability, the capacity to dial numbers without human intervention is required.”). Plaintiff offers no evidence that WorkAlert sends job offer text messages without human intervention.  Conversely, Defendant provides evidence that WorkAlert requires multiple steps of human intervention to send a job notification text. Dkt. No. 30-1, pgs. 3–5 (Pg. ID 329–331). Even when using a fixed group, branch employees must manually edit the list of workers to fit a particular job assignment, craft an outgoing text message, and then click certain keys to send a message. Id. This level of human judgment and intervention precludes a system from falling under the definition of an ATDS. See, e.g., Smith v. Stellar Recovery, Inc., No. 15-cv-11717, 2017 WL 1336075, 2017 U.S. Dist. LEXIS 35658 (E.D. Mich. Feb. 7, 2017) (holding equipment that cannot dial numbers without agents initiating the call is not an autodialer); see also Marshall, 2018 WL 1567852, at *, 2018 U.S. Dist. LEXIS 55223, at *17–18 (collecting cases).  Viewing the evidence in the light most favorable to the Defendant, the record does not demonstrate that the WorkAlert system is an ATDS as a matter of law because it sends text messages to a set list. To the contrary, Defendant has provided evidence that the texts WorkAlert sends to potential workers require human intervention, preventing the system from qualifying as an ATDS. c) Automated Text Messages  Plaintiff argues that the WorkAlert system qualifies as an ATDS because it can automatically send texts in response to certain action words sent to the system, like “start,” “help,” or “stop.” Dkt. No. 33, pg. 11 (Pg. ID 393). The text message log between Plaintiff and WorkAlert contains examples of these automated responses; WorkAlert’s reply arrives within a second of its receipt of a message with a trigger word.5See, e.g., Dkt. No. 30-4, pg. 1 (Pg. ID. 337). According to the Plaintiff, these automated texts prove that WorkAlert has the capacity to send messages without human intervention and so qualifies as an ATDS.  Although WorkAlert sends automatic responses when a user opts in, opts out, or asks for help, reasonable jurors could disagree on whether that qualifies the system as an ATDS. The statutory definition of an ATDS contains the word “automatic.” However, that definition also requires that the equipment “store or produce numbers to be called, using a random or sequential number generator.” 47 U.S.C. § 227(a)(1). Plaintiff provides no evidence that WorkAlert has that capacity.  The FCC has stressed the importance of human intervention in evaluating whether a system is an autodialer, but the Commission has eschewed a per se “human intervention test.” 30 FCC Rcd 7961, 7976 (F.C.C. July 10, 2015). Instead, the FCC promotes a “case-by-case determination” which considers “how the equipment functions and depends on human intervention.” Id. at 7975. In a 2012 declaratory ruling, the FCC could have decided whether automated opt out text messages qualify a sending system as an ATDS. In re Rules & Regulations Implementing the TCPA of 1991, 27 FCC Rcd 15391, 15393 (F.C.C. Nov. 29, 2012). Yet the FCC declined to rule on that issue and decided the matter on other grounds. Id. at 15398 (holding that consumer had provided express consent to receive the messages).  Here, the disputed texts confirm a user’s opt into or opt out of WorkAlert, and such messages are generally not actionable under the TCPA. Indeed, “a one-time text message sent immediately after a consumer’s request for the text does not violate the TCPA and our rules.” 30 FCC Rcd 7961, 8015 (2015). When considering an opt out confirmation text, courts have held that the text was not actionable under the TCPA because the plaintiff’s own text precipitated the confirmation message. See Derby v. AOL, Inc., No. 15-cv-00452-RMW, 2015 WL 3477658, at *, 2015 U.S. Dist. LEXIS 70719 at *20 (N.D. Cal. June 1, 2015). The FCC permits these types of confirmation messages as good public policy because the consumer initiates the text exchange and the messages relay information that the consumer has requested. See 30 FCC Rcd 7961 at 8015–8016 (2015).  Viewing the facts and making all reasonable inferences in favor of the Defendant, the Court concludes that Plaintiff has not shown that all reasonable people would conclude that the automated confirmation texts establish the WorkAlert system as an autodialer. Thus, Plaintiff is not entitled to summary judgment.