A new federal district court decision supports industry arguments that innovative communications technologies should not be considered “automatic telephone dialing systems” (autodialers) under the Telephone Consumer Protection Act (“TCPA”). It also provides some helpful language on TCPA liability issues for companies that initiate non-telemarketing, informational calls and messages.
The TCPA prohibits parties from, inter alia, placing autodialed calls or text messages to wireless telephone numbers absent an emergency or the “prior express consent” of the called party. It defines an autodialer 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.” The TCPA provides for damages of up to $1,500 per call or message.
In Ibey v. Taco Bell Corp (Case No. 12-CV-0583-H (WVG)) (S.D. Cal.), which concerns TCPA liability for one-time opt-out confirmation text messages, the judge questioned whether the technology used to place messages to specific individuals qualifies as an autodialer. She concluded that the Plaintiff had not pled sufficiently that an automatically generated text message confirming an individual’s request to opt out of future communications was placed via an autodialer. The judge stated that “to constitute an [autodialer] under the statute, the equipment must have the capacity to store or produce telephone numbers to be sent text messages and use a random or sequential number generator to text the numbers.” This is a narrower reading of the scope of equipment that falls within the autodialer definition than some courts have taken. The judge also noted that the “Plaintiff’s allegation that there ‘was no human intervention on the part of the Defendant’ does not satisfy or allege the requirements of the statute.” Additionally, she stated that the text message sent to the Plaintiff was not “random.” PA provides for damages of up to $1,500 per call or message.
The judge in Ibey also stated that the Defendant’s opt-out confirmation text message “does not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA.” She added that “[t]o impose liability under the TCPA for a single, confirmatory text message would contravene public policy and the spirit of the statute – prevention of unsolicited telemarketing in a bulk format.”
The judge granted the Defendant’s motion to dismiss but provided the Plaintiff with an opportunity to amend the complaint to correct deficiencies.