In another Telephone Consumer Protection Act case that further muddies up the compliance waters, a District Court judge in Missouri has denied a plaintiff’s motion to certify a class and granted a defendant’s motion for summary judgment after it was accused of violating the TCPA by sending text messages to individuals’ cell phones using an automated telephone dialing system.
But the judge determined that the system used by the defendant was not an ATDS and granted its request for summary judgment.
A copy of the ruling in the case of Beal v. Outfield Brew House, LLC can be accessed by clicking here.
Patrons of the establishment could fill out paper cards with their contact information to participate in contests and giveaways. The patrons were requested to sign the cards which included a disclosure consenting to be contacted via calls, emails, and text messages. Employees from the defendant would input the information into a spreadsheet which was uploaded into a platform that sent text messages on the defendant’s behalf. The representatives would create the message in the platform and then hit a send button to deliver the messages to the recipients.
The plaintiff wanted the judge to use the ATDS definition set forth in the Appeals Court ruling from Marks v. Crunch San Diego, while the defendants countered with rulings from the Third and Eleventh Circuits in Dominguez v. Yahoo and Glasser v. Hilton Grand Vacations. Siding with Dominiguez, the judge determined that to meet the ATDS definition, the platform must produce numbers to be called “using a random or sequential number generator.” Because the numbers had to be manually inputted into the platform, either by uploading a CSV file or by keying them in one at a time, the platform did not meet the ATDS definition.
“While Plaintiff denies the fact that the platforms did not generate telephone numbers, he has no evidence to dispute this,” wrote Judge Douglas Harpool of the District Court for the Western District of Missouri, Central Division. “Instead, Plaintiff argues that Txt Live!’s code uses a ‘shuffle’ function and has software that ‘randomize[s] contacts’ as a step in the campaign process. However, taking Plaintiff’s argument as true, if the software can ‘randomly-select phone numbers,’ that is not the same as generating them. Instead, Plaintiff’s argument is that the software can shuffle, or randomize, from the contacts that were already uploaded into the system manually. This does not constitute an ATDS.”