On Monday, June 1, a District Court in the Northern District of California granted AOL’s motion to dismiss plaintiff Nicholas Derby’s putative TCPA class action complaint on the grounds that the complaint failed to allege facts sufficient to establish that the AOL Instant Messenger (AIM) service was an automatic telephonic dialing system (ATDS) under the Act. Notably, the court did not wait until discovery had been conducted to determine whether the AIM service qualified as an ATDS.
AIM allows its users to send messages to one another and also to mobile telephone numbers by first entering a mobile phone number as a contact, and then composing and sending a message to that mobile phone number. The AIM service then transmits messages to mobile telephone numbers as Short Message Services (SMS) or “text” messages.
According to the complaint, plaintiff Derby received three unsolicited text messages from the AIM service. The court presumed that these three text messages resulted from the incorrect entry of a mobile phone number as an AIM contact. Derby followed AOL’s instructions for blocking the transmission of AIM text messages in the future, and received a confirmatory text message in response. The complaint alleged that the three text messages as well as the confirmatory text violated the TCPA because the messages were sent by an ATDS without Derby’s prior express consent.
The TCPA provides that it is unlawful “to make any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).
In its motion to dismiss, AOL argued that AIM was not an ATDS because its system required human intervention for the sending of text messages. Derby disagreed, arguing that in this case, where the human intervention merely prompts an automatic system to dial a number, the system qualifies as an ATDS. In his opposition, Derby analogized to Sterk v. Path, Inc. (N.D. Ill. 2014) and Fields v. Mobile Messengers Am., Inc. (N.D. Cal. 2013), in which courts found the systems at issue each qualified as an ATDS where individuals uploaded contact information and where equipment was then used to make calls to numbers on the uploaded lists without human intervention.
The court disagreed with Derby and distinguished the Path and Mobile Messengers cases on three grounds:
- here, an AIM user manually entered a single telephone number whereas in Path and Mobile Messengers entire contact lists were uploaded;
- here, the message content was personal and user-generated whereas in Path and Mobile Messengers the message content was promotional and automatically-generated; and
- here, an individual AIM user initiated the sending of the messages, whereas in Path and Mobile Messengers the companies initiated the sending of the promotional texts.
Thus, based on the facts as alleged in the complaint, the court found that the present case was unlike Path and Mobile Messengers and that “extensive human intervention [was] required to send text messages through [AOL’s] AIM service.” Therefore, the court found that no ATDS was used and there was no basis for a cause of action under the TCPA.
The court also found that the confirmation text sent by the AIM service was not a violation of the TCPA by looking to “the purposes of the TCPA” and determining that “[c]onstruing the TCPA to prohibit consumer-friendly confirmation texts like that at issue here would fly in the face of both common sense and the goals of the TCPA.” This holding extends the FCC’s SoundBite Ruling—finding that an initial consent to receive messages encompassed consent to receive a text confirming a request to opt-out and that, in such cases, confirmatory texts were consumer-friendly—to situations where plaintiffs did not initially consent to receiving messages.
Companies in the practice of sending confirmatory text messages should take note of Derby’s extension of the SoundBite Ruling. In addition, the Derby court’s analogies to Path and Mobile Messenger suggest factors that companies should consider when implementing a text messaging service and which may impact potential TCPA liability, including whether a single telephone number or an entire contact list may be entered into a system, whether message content is personal or promotional, whether message content is user-generated or automatically-generated, and whether the user or the company will initiate the actual sending of messages.
This entry was originally posted on Hogan Lovells’ Chronicle of Data Protection