Well this is a mighty big ruling out of our smallest state.
As we have written about repeatedly,the TCPA’s ATDS definition is on the shrink after years of expansion. The Eleventh and Seventh Circuit Courts of Appeal have recently confirmed that a device is not subject to the TCPA unless it has the capacity to randomly or sequentially generate numbers. That takes the wind out of the sails of most Plaintiffs lawyers seeking to sue for automated calls—there aren’t too many folks out there using random-fire dialers these days.
So, in desperation, the Plaintiff’s bar has fallen back on a barely straight-faced argument in an effort to salvage these cases: all dialers can dial random numbers because Microsoft’s ubiquitous Excel program has a random number generator built in. Since most every computer has an Excel program—the argument goes—every piece of software-enabled dialing equipment necessarily has the ability to “randomly” generate numbers to be dialed.
Yeah, I know. That’s pretty bad. But there are a number of expert reports floating around out there that make this precise argument and Plaintiff’s lawyers continue to make it.
But maybe that will stop now that a Court has squarely rejected the argument—and at the pleadings stage nonetheless. In Decapua v. Metro. Prop. & Cas. Ins. Co., C.A. No. 18-590 WES, 2020 U.S. Dist. LEXIS 47695 (D. R.I. March 18, 2020) the Defendant moved to dismiss arguing that the EZ Text platform—remember it?—does not qualify as an ATDS.
In granting the motion the Decapua district court made a couple of key and helpful rulings.
First, the Court adopted Glasser’s approach to human intervention and determined that even where a system dials numbers itself, critical is that “[a]n employee’s choice initiates every call.” The EZ text system requires a user to select numbers to receive messages—and the content of the messages themselves—before (allegedly) blast texting everyone in the campaign. That was enough human intervention for the Decapua court, which concluded the effort needed to build the campaign was sufficient HI to take the equipment outside of statutory coverage. (As ever before, however, human intervention remains in the eye of the beholder—so watch out.)
Second, and perhaps more reliably, the Court followed Glasser and Gadelhak in adopting the “majority” position that an ATDS must have the capacity to randomly or sequentially generate numbers to be called. The Complaint’s allegations obviously failed to allege facts demonstrating the EX Text system can just start firing off random text messages. But—says Plaintiff—the EZ Text system resides on a CPU, and CPUs have Windows-based software, including Excel. And Excel, has the capacity to generate random numbers… so I can clearly not choose the wine in front of you.
Ahem, you get the point.
The Court was unimpressed with this Viccini-style deductive reasoning and concluded that just because a CPU might include Excel, that does not make Excel an “integral and necessary part” of EZ the Texting platform. (That sounds like a new test—a random number generator must be an “integral and necessary part” of a dialing system to trigger ATDS coverage.) Instead, the Court focused on the present capacity of the system and reasoned that without an essential connection between Excel and the operation of the dialer there is no way the system as a whole qualifies as an ATDS.
To make matters more fun, the Court kicks a little dirt on the TCPA as well— “This case turns on an antiquated statute that has remained unchanged while technology has evolved.” You said it.
Notably Decapua is the first case in the First Circuit Court of Appeals to adopt the statutory definition—the D. Mass has followed Marks—and its decision to follow Glasser on human intervention is fantastic since it insulates users of most text platforms from exposure.
Happy Tuesday folks.