The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

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Another Court Limits What Constitutes an ATDS Under the TCPA: Is it Safe to Say a Toaster is Not an Autodialer?

The TCPA remains a hotbed of class action litigation, with new cases being filed across the country. The viability of cases frequently turns on whether defendant used an automatic telephone dialing system (“ATDS” or “autodialer”). Given the broad definition provided by the FCC, many courts have held that any device that has the mere capacity to autodial falls within the definition of an ATDS. As one well-known company expressed in an amicus brief on the issue, such a broad interpretation of ATDS would encompass any device, including a toaster oven.

Last week, a Northern District of California court acknowledged this absurdity when it granted summary judgment for GroupMe, Inc. (“GroupMe”) on a TCPA claim, finding there was no triable issue of fact as to whether GroupMe used an autodialer. Glauser v. GroupMe, Inc., 2015 WL 475111 (N.D. Cal. Feb. 4, 2015). The case involved GroupMe’s group messaging application, where users can create groups whose members can all send text messages to each other. One user created a “Poker” group and added plaintiff to that group. Plaintiff received two text messages welcoming him to the group and instructing him how he could opt out of the group. Plaintiff did not respond, but received more text messages where group members discussed their availability for a poker game. Because plaintiff had not responded, GroupMe sent plaintiff a text message notifying plaintiff he’d be removed from the group, unless plaintiff replied to the text message. Plaintiff indeed responded “In,” which reinstated him as part of the group.

Despite joining into the Poker group, plaintiff cried foul and sued under the TCPA. GroupMe moved for summary judgment on the issue of whether it used an autodialer. The court made three findings in ruling in favor of GroupMe. First, the district court agreed that whether equipment has the “capacity” to autodial depends on the device’s present capacity, not potential capacity, noting that to accept a “potential capacity” argument would impermissibly allow the TCPA to capture common devices, such as smartphones. Second, the court held that autodialers include not just dialers that can generate numbers randomly or sequentially, but also predictive dialers. Finally, the court ruled that an autodialer must have the capacity to dial numbers without human intervention. Because all of GroupMe’s text messages were triggered by the original GroupMe user’s creation of the “Poker” group, human intervention was necessary, and GroupMe did not use an autodialer. Absent an autodialer, plaintiff’s case fell on summary judgment.

The GroupMe case demonstrates that TCPA actions may be brought for nearly any conduct involving text messages. Despite affirmatively joining in the “Poker” group and reaping the benefits of the GroupMe service, plaintiff still sued. The ruling also demonstrates that more courts are inclined to scale back what constitutes an ATDS under the TCPA. The FCC may weigh in on the issue, as petitions remain pending. Until then, expect more uncertainty on the scope of an ATDS under the TCPA.