In Hunsinger v. Gordmans, Inc., 2016 WL 7048895, at *5–6 (E.D.Mo., 2016), Magistrate Judge Nocel deferred summary judgment on whether an ATDS was used until there was further discovery undertaken.
The question at issue is whether the mGage platform Gordmans used to send the text messages constitutes an ATDS. The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The TCPA does not define what conduct “call” encompasses, but the FCC in administering the statute has stated that “the prohibition on using [ATDSs] to make calls to wireless phone numbers applies to text messages (e.g., phone-to-phone SMS), as well as voice calls.” In the Matter of Rules and Regulations Implementing the Controlling the Assault of Non–Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 19 FCC Rcd. 15927, 15934 (FCC August 12, 2004). The same is true of internet-to-phone text messaging. In the Matter of Rules & Regulations Implementing the Tel. Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961, 8020 (July 10, 2015). The FCC has also stated that in order to be considered an ATDS, “equipment need only have the capacity to store or produce telephone numbers.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14092 (July 3, 2003) (emphasis in original). The FCC has noted that while technology has evolved since the TCPA’s enactment in 1991, “[t]he basic function of [ATDSs] has not changed—the capacity to dial numbers without human intervention.” Id. (emphasis in original). The FCC has identified predictive dialers as ATDSs. This “hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” Id. at 14091. The FCC has stated that “Congress intended a broad definition of autodialer.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961, 7974 (July 10, 2015). The FCC has repeatedly held that the basic functions of an autodialer are (1) “to dial numbers without human intervention” and (2) “to dial thousands of numbers in a short period of time.” Id. at 7975 (citations omitted). In addressing the first function, the FCC has stated that “[h]ow the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.” Id. As to the second function, defendant has not produced evidence as to how many messages were sent at a time. After reviewing the substantive arguments made about the platform Gordmans used to send the promotional text messages to plaintiff, the court concludes that plaintiff has made a good-faith showing that further factual investigation and expert testimony may reasonably be relevant to defendant’s argument that its platform was not an ATDS. Defendant has argued that human intervention was required to send the text messages at issue, and that the platform Gordmans used is therefore not an ATDS. Plaintiff argues that he has not yet been able to depose defendant’s declarants and requests more time to have an expert review defendant’s arguments about the technology used to send the text messages to his phone, such as how many messages could be sent at a time. (ECF Nos. 29, 32). The court concludes that an opportunity for further discovery is reasonable before the court rules whether or not defendant is entitled to summary judgment on the ATDS issue.