Human Touch Defeats TCPA Unsolicited Text Messaging Class Action

PhoneOn June 1, 2015, the Northern District of California granted AOL’s motion to dismiss a class action Telephone Consumer Protection Act (TCPA) suit premised on four text messages received by the named plaintiff in Derby v. AOL, Inc.  The plaintiff’s claims arose from two different types of text messages: the first consisted of a group of three messages that the plaintiff received from an AOL customer, sent via AOL Instant Messenger (AIM).  The second type was an automated confirmation text that AOL sent to the plaintiff after it received plaintiff’s request to block further messages from the AOL customer who sent the plaintiff the first set of messages.

The Telephone Consumer Protection Act (TCPA), prohibits any person from using an “automatic telephone dialing system” call “any telephone number . . . for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). The plaintiff argued that the first three texts were “automatically” sent to him because of the technology involved in sending the texts:  even though another person – the AOL user – initiated the text, AOL’s software routed that user’s request to an automatic dialer, which in turn dialed the plaintiff’s phone and sent the text message.  See Order at 8.  The Court rejected this argument, finding that the AOL user’s action in sending the text message was sufficient “human intervention” to disqualify AOL’s system from being considered an “automatic telephone dialing system” under the TCPA.  Id.  To draw a contrast to AOL’s actions, the Court referenced Fields v. Mobile Messengers Am., Inc., in which a computer that automatically sent text messages to millions of stored phone numbers was determined to be an “automatic telephone dialing system” within the meaning of the TCPA.  See Order at 6-7 (citing Fields v. Mobile Messengers Am., Inc., Case No. 12-5160, 2013 WL 677076, at *3 (N.D. Cal. Dec. 23, 2013)).

The plaintiff also argued that, unlike the first three texts, the opt-out confirmation text was sent to him automatically and truly without human intervention.  See id at 9.  The Court rejected this argument as well, finding that the plaintiff’s own action – sending the text to AOL requesting that AOL block future text messages – precipitated the automated confirmation text.  In the circumstances, the plaintiff had thereby implicitly consented to receive AOL’s automated text message in response.  See id. at 11-12.

As Derby illustrates, plaintiffs’ legal theories under the TCPA are continually evolving, but companies can successfully push back against the automatic telephone dialing system designation.  As always, Lender Law watch will keep its eye on further TCPA developments and bring them to you as they arise.