In Beal v. Outfield Brew House, No. 2:18-cv-4028-MDH, 2020 U.S. Dist. LEXIS 22487 (W.D. Mo. Feb. 10, 2020), Judge Harpol granted summary judgment to a TCPA defendant, rejecting the 9th Cir.’s decision in Marks.
Plaintiff urges the Court to follow the Ninth Circuit’s opinion, which found the statutory definition of an ATDS ambiguous and interpreted an ATDS to include devices with the capacity to dial stored numbers automatically. Marks v. Crunch San Diego, LLC., 904 F.3d 1041, 1050 (9th Cir. 2018). In Marks, the Ninth Circuit stated: [W]e read § 227(a)(1) to provide that the term automatic telephone dialing system means equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers. Id. at 1052. Further, the court reasoned “common sense indicates that human intervention of some sort is required before an autodialer can begin making calls, whether turning on the machine or initiating its function.” Id. at 1052-1053. (vacating summary judgment and remanding for further proceedings on whether the system is an ATDS).9 For the reasons set forth herein, and as discussed in the cases criticizing Marks, this Court declines to follow the Ninth Circuit’s interpretation of an ATDS. Here, this Court finds that for the system to meet the definition of an ATDS it must produce numbers to be called “using a random or sequential number generator.” See Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d at 121 (finding the system did not fall under the TCPA prohibition because it did not have the “present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers”). The platforms at issue in this case could only text individuals whose numbers had been entered into the system manually — either by importing information from a CSV file or individually typing in the number. In other words, the system did not generate telephone numbers, it merely stored them. While Plaintiff denies the fact that the platforms did not generate telephone numbers, he has no evidence to dispute this. Instead, Plaintiff argues that Txt Live!’s code uses a “shuffle” function and has software that “randomize[s] contacts” as a step in the campaign process. However, taking Plaintiff’s argument as true, if the software can “randomly-select phone numbers,” that is not the same as generating them. Instead, Plaintiff’s argument is that the software can shuffle, or randomize, from the contacts that were already uploaded into the system manually. This does not constitute an ATDS. Further, the platforms used by Brew House also required additional human intervention, in addition to the uploading or entry of phone numbers, including the selection of the demographics who received the text, the message that would be sent, and the actual clicking of the launch or send function.10 The platforms used by Brew House did not have the ability to generate, or create, numbers. Rather, the platforms used numbers that were imported in a CSV file or manually entered by an individual typing the number into the system, a set list given to the system. See Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d at 612 (finding the system was not an ATDS when it could only call the specific stored telephone numbers and could not independently generate any other telephone numbers); and Fleming v. Associated Credit Servs., Inc., 342 F. Supp. 3d 563, 578 (D.N.J. 2018) (finding system did not qualify as an ATDS when human intervention was required to initiate the call). Further, in this case Brew House employees were a necessary component in selecting both the demographics and the specific message that would be sent out in each promotional text. See e.g., Ung v. Universal Acceptance Corp., 249 F. Supp. 3d 985, 989-91 (D. Minn. 2017); and Ramos v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262 (S.D. Fla. 2018).11 Finally, a Brew House employee had to manually click the send or launch function in order for the message to be delivered.