This article was originally published in Venable's All About Advertising Law Blog.
On August 19, 2015, in Luna v. SHAC, LLC, No. 5:14-cv-00607 (N.D. Cal.), the Northern District of California issued one of the first decisions interpreting the Telephone Consumer Protection Act’s (“TCPA”) definition of “automatic telephone dialing system” (i.e., autodialer) following the FCC’s July 2015 omnibus TCPA order. Luna may serve as guidepost for future litigants, as the key to the court’s decision lies in the degree of human involvement in the call making process.
In Luna, the defendant-gentleman’s club engaged a third-party mobile marketing company to provide a web-based platform for sending promotional text messages to its customers. The process to send the text messages through the web-based platform involved multiple steps, all of which required human involvement. First, an employee would input telephone numbers into the platform manually, or by uploading or cutting and pasting an existing list of phone numbers. Next, the employee would log in to the platform to draft the message content. The employee, then, would designate specific phone numbers to which the message would be sent. Finally, the employee would click “send” on the website to transmit the message to the defendant’s customers. The messages could be transmitted in real time or as prescheduled messages sent at a future date.
The court granted the defendant’s motion for summary judgment. In its decision, the court assessed whether the defendant’s dialing/texting platform constituted a prohibited dialer under the TCPA in the wake of the FCC’s July 2015 order and found that the level of human intervention in dialing precluded liability under the Act. Although briefing on summary judgment likely was completed before the FCC order issued, the Luna court cites to the FCC order in its decision.
Luna is important for several reasons. First, the court found that human involvement – in this case, multiple manual actions – defeated a claim that the dialing platform constituted a prohibited autodialer. Second, the decision is the first to issue following the FCC’s July 2015 order. Third, the court distinguished numerous recent cases cited by the plaintiff on the grounds that the human involvement in those prior cases did not reach the level necessary to make the programs “autodialers.” The human involvement in Luna was held to be sufficient to warrant exclusion from the definition. Finally, although the court cited the FCC’s July 2015 order, it did not discuss the FCC’s conclusions regarding the future “capacity” of a platform to autodial. With respect to the latter, the court, instead, cited the pre-FCC order line of cases, such as Glauser v. GroupMe and McKenna v. WhisperText. Those cases held that it is the actual, present capacity to autodial that matters for purposes of TCPA liability.
Luna is an encouraging decision although the plaintiff has filed a Fed. R. Civ. P. 59(e) motion to set aside the judgment, arguing that the court’s interpretation of the FCC’s order constituted clear legal error. Oral argument on the motion will take place in October 2015. Keep following this blog, and we will keep you apprised of new developments as the July 2015 order is implemented in the courts. In the meantime, please see this compiled list of recent TCPA class action cases.