Yes, you read it right. In Gragg v. Orange Cab Co., Inc., — F.Supp.2d —-, 2014 WL 494862 (W.D.Wash. 2014), Judge Lasnik held that a TCPA did not use an ATDS within the meaning of the TCPA. The facts were as follows:
Defendant Orange Cab Company, Inc. (Orange Cab) utilizes TaxiMagic, a Ridecharge, Inc. product, as a means of remaining competitive in a technologically advancing industry. Motion (Dkt.# 69) at 7. TaxiMagic is a computer program that links together Orange Cab’s dispatch terminals, the cab drivers’ Mobile Data Terminals, and an SMS modem in order to send text message dispatch notifications to Orange Cab customers. DePasquale Declaration (Dkt. # 71) at 2. Following dispatch, TaxiMagic transmits a text message notification to the customer which states the cab number and time the dispatcher’s request was accepted by the driver. Motion (Dkt.# 69) at 7. The notification may also include the driver’s name, the distance from the cab dispatch location to the customer, and an invitation to download the TaxiMagic smartphone “app”. ¶ Orange Cab uses the TaxiMagic program on a computer system that generates a text message incorporating customer-specific data and then transmits a notification to the provided or procured telephone number. Id. at 11. The Orange Cab dispatcher who answers the phone obtains the customer’s name and telephone number, along with the requested pickup and dropoff locations. Id. at 10. The customer’s number may also be captured using Caller ID. Heyrich Declaration (Dkt.# 84) Ex. E 134:10–13. The dispatcher then manually inputs this information into the dispatch terminal. Motion (Dkt.# 69) at 10. When the dispatcher presses “enter,” the information is relayed both to the TaxiMagic program and the driver closest to the customer’s requested pickup location. Id. By pressing “accept” on his or her Mobile Data Terminal, the driver communicates his or her acceptance to TaxiMagic. Id. at 11. The program then composes the notification and transmits the message to the customer’s telephone number. Id. The system is capable of generating and sending dispatch notifications only in response to a driver’s acceptance of an individual customer’s request. Id. ¶ Plaintiff called Orange Cab and requested a taxi at 5:17 PM on February 25, 2012. Gist Declaration (Dkt.# 70) Ex. I. Plaintiff did not provide his telephone number which was instead captured using Caller ID. Response (Dkt. # 83) at 4. The dispatcher created plaintiff’s cab request by manually inputting his information, and then pressed “enter” to transmit the data to TaxiMagic and the nearest available driver. Gist Declaration (Dkt.# 70) Ex. H. A driver transmitted his acceptance of plaintiff’s request by pressing “accept” on his Mobile Data Terminal at 5:20 PM. Id. Ex. J. TaxiMagic then sent plaintiff the offending message which read “Taxi # 850 dispatched @ 05:20. Smart phone? Book our cabs with Taxi Magic-# 1 FREE taxi booking app http:// cabs.io/29e1b7d.” FN3 Id. at 12.
The District Court granted summary judgment to the defendant, finding that no ATDS was used:
“When evaluating the issue of whether equipment is an ATDS, the statute’s clear language mandates that the focus must be on whether the equipment has the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator.’ “ Satterfield, 569 F.3d at 951. As such, “a system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Id. ¶ Plaintiff urges the Court to rule that the modem utilized by defendants to operate the TaxiMagic program is the “system” as envisioned by Satterfield. Response (Dkt.# 83) at 9. Under this interpretation, as the modem has the ability to both store multiple telephone numbers in an address book and transmit a mass text message to those numbers, it would be an ATDS under the TCPA. Id.; see Heyrich Declaration (Dkt.# 84) Ex. 72 at TM005308, TM005344. ¶ The Court declines to adopt an interpretation of “system” that would lead to an absurd result. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 584 (1982) (noting that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available”). Adopting plaintiff’s broad interpretation that any technology with the potential capacity to store or produce and call telephone numbers using a random number generator constitutes an ATDS would capture many of contemporary society’s most common technological devices within the statutory definition. See Hunt v. 21st Mortg. Corp., No. 2:12–CV–2697–WMA, 2013 WL 5230061, at *4 (N.D.Ala. Sept. 17, 2013) (noting that, as, “in today’s world, the possibilities of modification and alteration are virtually limitless,” this reasoning would subject all iPhone owners to 47 U.S.C. § 227 as software potentially could be developed to allow their device to automatically transmit messages to groups of stored telephone numbers). The Court will therefore determine the TaxiMagic program’s status under the TCPA based on the system’s present, not potential, capacity to store, produce, or call randomly or sequentially generated telephone numbers. ¶ In order for defendants’ system to constitute as ATDS, it must have the capacity to “store, produce, or call randomly or sequentially generated telephone numbers.” Satterfield, 569 F.3d at 951. While plaintiff has gone to great lengths to demonstrate the techno-logical limits of defendants’ system, he has failed to provide the Court with any evidence that either TaxiMagic or the modem has the capacity to randomly or sequentially generate telephone numbers to be stored, produced, or called.FN5 [FN5. Alternatively, the TaxiMagic program could be an ATDS if plaintiff can demon-strate that it operates as a predictive dialer. As noted above, a predictive dialer must have the capacity to dial telephone numbers from a list without human intervention. “2008 FCC Ruling,” at 566 ¶ 14. This contention will be addressed in the following section.] “ ‘Random number generation’ means random sequences of 10 digits, and ‘sequential number generation’ means (for example) (111) 111–1111, (111) 111–1112, and so on.” Griffith v. Consumer Portfolio Serv., Inc., 838 F.Supp.2d 723, 725 (N.D.Ill.2011). TaxiMagic is programmed to send dispatch notifications in response to an individual customer’s request for a cab. Motion (Dkt.# 69) at 11. The telephone numbers utilized by the system are those provided directly by customers or captured using Caller ID and inputted by the dispatcher. Id. at 10; Heyrich Declaration (Dkt.# 84) Ex. E p. 134: 10–13. Plaintiff has submitted no evidence that the TaxiMagic program can autonomously randomly or sequentially generate numbers to be dialed as required to fulfill the statutory definition of an ATDS. Additionally, the Court can find no evidence in the modem’s manual, Heyrich Declaration (Dkt.# 84) Ex. 72, that the device can be programmed to generate telephone numbers in this fashion. The Court therefore finds that defendants’ TaxiMagic program does not constitute an ATDS. ¶ 2. Defendant’s System is not a Predictive Dialer. ¶ Acknowledging that the teleservices industry had evolved, the FCC ruled that predictive dialers are subject to the TCPA’s restriction on autodialers. “2008 FCC Ruling” at 566 ¶ 14. The “basic function of such equipment … [is] the capacity to dial [lists of] numbers without human intervention.” Id.; see also Soppet v. Enhanced Recovery Co., 679 F.3d 637, 638–39 (7th Cir.2012) ( “The machine, called a predictive dialer, works autonomously”). ¶ TaxiMagic does not function in the manner prohibited by the FCC. In order for a text dispatch notification to be sent to a customer, the customer must have first provided some amount of information to the dispatcher, the dispatcher must have pressed “enter” to transmit that information to both the TaxiMagic program and the nearest available driver, and the driver must have pressed “accept” on his or her Mobile Data Terminal. Motion (Dkt.# 69) at 10–11. Following the Ninth Circuit’s “ ‘common sense’ approach to TCPA claims,” Friedman v. Massage Envy Franchising, LLC, No. 3:12–cv–02962–L–RBB, 2013 WL 3026641, at *4 (S.D. Cal. June 13, 2013) (quoting Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir.2012)), the level of human agency involved in transmitting the text dispatch notifications is sufficient to qualify as “human intervention.” The system is able to dial and transmit the dispatch notification only after the driver has physically pressed “accept”: human intervention is essential. See Motion (Dkt.# 69) at 11. The Court therefore finds that the TaxiMagic program is not a predictive dialer.