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Text Marketer Gains Legal Victory in California

“Human intervention” was key to avoiding TCPA liability

In Luna v. Shac, LLC (decided in the Northern District of California on August 19, 2015), the court ruled that the defendants’ mass text marketing campaign did not violate the Telephone Consumer Protection Act (TCPA) because there was sufficient human intervention that precluded a finding that an autodialing device was used.

Remember, a necessary element of a TCPA claim for telephone calls or texts (but not faxes) is that the messages are sent via an “automatic telephone dialing system.”  Put another way, if there is no autodialer, there is no TCPA violation.

In the twenty four years that have passed since the TCPA was enacted, courts have had to decide whether new technology fits the increasingly outdated definition Congress provided for the term  automatic telephone dialing system. The FCC has consistently applied a very broad definition to the term, with critics accusing the FCC of exceeding its authority by redefining Congress’ statute.

The Luna v. Shac decision is one of the first since the FCC’s  latest Declaratory Ruling and Order on the topic of autodialers, which was announced in June and took effect on July 18th. The court took a  defendant-friendly view of what constitutes an autodialer, and its discussion of the defendants’ work process provides valuable insight into structuring a text marketing campaign that might reduce the likelihood of TCPA exposure.

The Court found that an autodialer was not used for the defendants’ mass text marketing campaign because, “human intervention was involved in several stages of the process prior to Plaintiff’s receipt of the text message,” including transferring of the telephone number into a database, drafting the message, determining the timing of the message and clicking “send” on the website to transmit the message.  The telephone numbers were entered into a web-based platform either by manually typing them into the website, by uploading, or cutting and pasting. An employee of the defendants typed up the text message content and clicked send to transmit.

Keep in mind that that the Luna v. Shac ruling was issued in the Northern District of California and is not binding on other courts.  Decisions from other courts are not all consistent, and a consensus has yet to emerge in the wake of the FCC’s recent Declaratory Ruling and Order.

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