Timing really is everything.
As TCPAWorld continues to struggle with the evolving definition of the TCPA’s critical “automated telephone dialing system” (“ATDS”) language, a court in New York has given us a new way to look at the issue—and it’s all about timing.
In Duran v LaBoom Disco, Case No. 17-cv-7331, 2019 U.S. Dist. LEXIS 30012 (E.D.N.Y.) the court entered judgment in favor of a text message TCPA defendant sua sponte (!) because the text platforms it utilized were not capable of selecting the timing of text message campaigns without human intervention. This is true although the system automatically sent text messages from a list after the campaign commenced.
In Duran the Plaintiff moved for summary judgment arguing that the Defendant’s text message platforms—ExpressText and EZ Texting—were automatic dialing systems governed by the TCPA. The Plaintiff argued that these systems were not “click to dial” systems and that the Defendant could command the system to send thousands of texts at a time. After first determining that the Defendant did not have consent to send the telemarketing messages at issue in the case the Court analyzed Plaintiff’s challenge to the ATDS issues. In addressing those issues—and after carefully reviewing the Second Circuit’s King decision— the Duran Court determined that the 2003 Predictive Dialer ruling survived ACA Int’l at least in so far that a dialer is not categorically exempted from the TCPA merely because it calls from a list of numbers; i.e. the Duran court refuses to require “random or sequential number generat[ion]” as the hallmark of ATDS usage. See Duran at * 18.
That doesn’t sound good, but what the Court does next is brilliant. In applying the 2003 predictive dialer ruling Duran focuses on the FCC’s decision to regulate predictive dialers—specifically dialers that select the timing of calls to be made. As the Court put it: “when the FCC expanded the definition of an autodialer to include dialers, the FCC predictive emphasized that ‘[t]he principal feature of dialing software is a predictive timing function.’ 2003 Order, supra, ¶ 131 (emphasis added). Thus, the human-intervention test turns not on whether the user must send each individual message, but rather on whether the user (not the software) determines the time at which the numbers are dialed.” Duran at * 32. Interesting, no?
The Court also defended the FCC’s focus on such dialers as based on sound logic: “the requirement that a computer determine the time in order for the device to qualify as ATDS is not arbitrary… the FCC decided to include predictive dialers under the statutory definition of an ATDS because… programs with computer-run timing functions have the capability to barrage consumers at a higher rate than programs requiring more human involvement.” See Duran at * 35.
After walking through this analysis the Court holds: “because a user determines the time at which the ExpressText and EZ Texting programs send messages to recipients, they operate with too much human involvement to meet the definition of an autodialer.” Id. At *36. Not only did the Court deny Plaintiff’s motion for summary judgement, therefore, it actually ended up granting judgment to the Defendant—with no formal motion needed—given the human intervention needed to select the time the messages were sent.
So there you have it TCPAworld. As we continue to struggle with the contours of the TCPA keep in mind that in evaluating whether a system is an ATDS_-as in life— timing is everything.