In Gragg v. Orange Cab Co., Inc.,  2014 WL 801305 (W.D.Wash. 2014), Judge Lasnik denied Plaintiff’s motion to reconsider his previous ruling that Orange Cab did not use a dialer to send text messages for passsengers who ordered cabs in Seattle.

Defendants moved for summary judgment based on the undisputed characteristics of its proprietary dispatch notification system. Dkt. # 69. Defendants expressly argued that their system is unable to store or produce telephone numbers using a random or sequential number generator (47 U.S.C. § 227(a)(1)) or to dial telephone numbers from a list without human intervention (In the Matter of Rules & Regulations Implementing the TCPA of 1991, 23 F.C.C.R. 559, 566 ¶¶ 13–14 (Jan. 4, 2008)). Despite being put on notice that the functionality of defendants’ system was the key issue, plaintiff did not request an opportunity to conduct additional discovery under Fed.R.Civ.P. 56(d).FN2 Rather, plaintiff argued that defendants’ equipment (a modem) could be programmed differently so that it could store lists of telephone numbers and send messages without human intervention. Plaintiff implicitly conceded that defendants’ system, as currently configured, did not meet either definition of an ATDS. Being fully informed of the parties’ respective positions and having carefully analyzed the relevant case law, the Court found that simply using a computer (or iPhone or modem) that could be, but was not, paired with software that would enable it to act as an ATDS was not enough to satisfy the “capacity” requirement of the TCPA. To hold otherwise would subject virtually all calls and text messages to the TCPA, since most modern computing systems and cell phones would, if properly programmed, be capable of storing telephone numbers and dialing them automatically if given a pre-defined trigger. . . . In his motion for reconsideration, plaintiff relies on two recent district court cases in which defendants’ motions for summary judgment were denied on the ground that plaintiffs had raised a genuine issue of fact regarding the existence of an ATDS. In both cases, the courts suggested that the plaintiffs had met their burdens on summary judgment by showing that defendants could obtain and install new software that would allow their systems to act as ATDSs. See Hunt v. 21st Mortgage Corp., 2014 WL 426275, at * 5 (N.D.Ala. Feb. 4, 2014) (defendant’s destruction of its system at a time when it knew of plaintiff’s claim made it impossible to determine, as a matter of law, whether enabling software “was in fact installed or could have easily been installed”); Sherman v. Yahoo! Inc., ––– F.Supp.2d ––––, 2014 WL 369384, at * 7 (S.D.Cal. Feb. 3, 2014) (“Plaintiff points to the testimony of Yahoo’s representative who testified that it could, if it wanted to, dial all of the telephone numbers in its database with a notification text message by writing new software code instructing the system to do so.”). These district court decisions are not, of course, binding. Nor are they particularly persuasive.  The governing authority in this circuit is Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009). Plaintiff and the district courts in Hunt and Sherman cite Satterfield in support of their expansive interpretation of the word “capacity” when determining whether defendant used an ATDS. The Ninth Circuit’s discussion of the term arose in a very narrow context, however, and does not justify the later judicial gloss on which plaintiff relies. The defendants in Satterfield purchased and stored a list of 100,000 telephone numbers, compiled a promotional message for a Stephen King book, and sent the combined file to a thirdparty for transmission to cell phone users. The district court focused its analysis on 47 U.S.C. § 227(a)(1) and concluded that, because the process did not involve “a random or sequential number generator,” defendants had not used an ATDS. Satterfield, 569 F.3d at 950–51. The Ninth Circuit found that the district court’s focus was in error and that there was evidence, in the form of expert testimony, that a system that “stored telephone numbers to be called and subsequently dialed those numbers automatically and without human intervention” was also an ATDS. Id. at 951. This alternative definition of an ATDS had been approved by the Federal Communications Commission, and the Ninth Circuit found it persuasive. Although the expert “never specifically declared” that defendants’ system could actually function as a predictive dialer, the “limited record demonstrates that there is a genuine issue of material fact whether this telephone system has the requisite capacity to be considered an ATDS under the TCPA.” Id.  There is nothing in Satterfield which supports, much less requires, an interpretation of the word “capacity” to mean anything more than “is capable of.” The TCPA defines an ATDS as “equipment which has the capacity” to do certain things. 47 U.S.C. § 227(a)(1). The definition is written in the present tense, which is consistent with the consumer protection goals of the TCPA. In Satterfield, the Ninth Circuit noted that the expert had not actually stated that defendants’ system was capable of dialing the list of stored telephone numbers without human intervention, but found that there was enough in the record to give rise to a genuine issue of fact on the existence of an ATDS. The case did not involve a situation in which it was clear that the system could not perform the functions of a predictive dialer unless it were modified or altered in some way. There is no indication that the Ninth Circuit would deem a system that has to be reprogrammed or have new software installed in order to perform the functions of an ATDS to be an ATDS. The Court declines to expand the definition of an ATDS to cover equipment that merely has the potential to store or produce telephone numbers using a random or sequential number generator or to dial telephone numbers from a list without human intervention. Equipment that requires alteration to perform those functions may in the future be capable, but it does not currently have that capacity. This interpretation is entirely consisted with Satterfield.   Plaintiff, relying on Hunt and Sherman, wants to sweep within the definition of an ATDS any hardware that could, if programmed differently, send the kind of automated messages that Congress found objectionable when it enacted the TCPA. This argument is not consistent with the language of the statute and its impacts would be untenable. Defendants’ system, as presently configured, does not randomly or sequentially generate numbers and is not able to send a text message without human input. It is therefore incapable of performing as an ATDS. The mere fact that defendants’ modem could, if paired with different software, develop the requisite capability is not enough under the TCPA or Satterfield. To hold otherwise would subject almost all sophisticated computers and cell phones to TCPA liability, a result Congress surely did not intend.

Judge Lasnik, however, certified a CEMA class, which is the Washington state law equivalent of the TCPA, which states:

(1) No person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service that is equipped with short message capability or any similar capability allowing the transmission of text messages.

Judge Lasnik held:

Plaintiff asserts that the “Dispatch Notifications” were expressly and intentionally targeted at individuals who were not using RideCharge products in order to convert them into RideCharge users. Plaintiff alleges that the notifications are “electronic commercial text messages” prohibited by CEMA (RCW 19.190.060) and seeks to litigate his CEMA claim on behalf of the following class:  All customers of defendant Orange Cab who were sent at least one text message to their cellular telephone number from defendant RideCharge without prior express consent.. . . Defendants also argue that the proposed class is improper because (a) their records are insufficient to identify “customers of Orange Cab” or to determine whether a text message was sent to a customer on a cellular telephone and (b) individual inquiry will be necessary to determine whether each member provided express consent before receiving the commercial text message at issue. Plaintiff has now clarified that his proposed class definition includes all persons who received a “Dispatch Notification” containing a promotional text message from RideCharge on their cellular telephones after contacting Orange Cab through a means other than a RideCharge product. Dkt. # 78 at 3. In light of the Court’s ruling on defendants’ motion for summary judgment, the class should also be limited to persons within the State of Washington and the definition should more closely track the language of CEMA. With those changes, the Court finds that, although some investigation will be necessary, whether a person falls within or outside of the proposed class is based on objective and clear standards. A review of RideCharge’s data will enable the parties to identify the telephone number to which a “Dispatch Notification” was sent, the cab company they contacted, and possibly the name and/or address of the recipient. The parties may have to do additional investigation to determine whether the telephone number is a cell phone or a land line and to link each cell number to an individual, but none of these hurdles is insurmountable.  For all of the foregoing reasons, plaintiff’s motion for class certification is GRANTED.

Gragg v. Orange Cab Co., Inc.. 2014 WL 794266 (W.D.Wash. 2014)