A federal district court in Florida recently held that a web-based text messaging platform that required a significant amount of human intervention to send SMS messages did not constitute an “automated telephone dialing system” under the Telephone Consumer Protection Act.
In reaching the conclusion that an ATDS “covers any equipment that has the specified capacity to generate numbers and dial them without human intervention ,” the court considered how different types of messaging platforms with similar features have been evaluated, and the consolidated appeal of the FCC’s 2015 Order before the D.C. Circuit in ACA International v. FCC. It rejected plaintiff’s argument that dialing equipment is an ATDS unless human intervention occurs at the precise moment a text is sent.
The case is Ramos v. Hopele. Importantly, the web-based text messaging system was unable to send text messages without numerous manual steps, including list creation, uploading data onto the platform, draft the message content, setting the delivery parameters and sending.
The court opined that the amount of human intervention necessary to deem dialing equipment as manual in nature should be assessed on a case-by-case basis.
The interpretation of what constitutes an ATDS is a hot button litigation issues at present that has resulted in splits of judicial opinion. The U.S. Court of Appeals for the Ninth Circuit recently chimed in on the issue. In Marks v. Crunch San Diego LLC, the appellate court found that equipment that can dial automatically from a stored list can be regulated as an ATDS.
Some courts have held that the standard is based upon whether a dialing system has the capacity to dial without human intervention. Some have held that a predictive dialer may still be considered an ATDS. Other courts have held that otherwise.
In Crunch, the court stated that equipment is an ATDS if it has the capacity to store numbers to be called and to dial such numbers automatically, even if there is no random or sequential number generator, including predictive dialers and certain text messaging systems. Contrary to other circuits, click-to-call and preview dialing systems are also arguably an ATDS according to the Ninth Circuit.
If you are interested in learning more about this topic, please email the author at firstname.lastname@example.org. Richard B. Newman is a performance marketing attorney at Hinch Newman. Follow him on Twitter at FTC Law Defense and Facebook at FTC defense lawyer.
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