In Glauser v. GroupMe, Inc., 2015 WL 475111 (N.D.Cal. 2015), Judge Hamilton found that GroupMe’s business model did not trigger or violate the TCPA because the software that sent the text was triggered by GroupMe’s customers and, therefore, there was “human intervention”.
This putative class action arises under the Telephone Consumer Protection Act (“TCPA”), which prohibits the making of any call (including text messages) without the prior express consent of the called party, using an automatic telephone dialing system, to any telephone number assigned to a cellular telephone service. In the operative first amended complaint (“FAC”), plaintiff describes GroupMe’s product as a “group messaging” application, which allows users to create a “group” and to transmit text messages to all members of the group at the same time. On or about April 23, 2011, plaintiff received two text messages sent through the GroupMe application. The messages read as follows: “Hi Brian Glauser, it’s Mike L. Welcome to GroupMe! I just added you to “Poker” w/ Richard L. Text back to join the conversation.” GroupMe is a group texting service. Standard SMS rates may apply. Get the app athttp://groupme.com/a to chat for free. Reply # exit to quit or # help for more. These two messages will be referred to collectively as the “Welcome Texts” After receiving the Welcome Texts, plaintiff received a number of messages from the “Poker” group’s members. Plaintiff did not respond to these messages, so GroupMe sent a text saying “Hey, are you there? GroupMe is more fun when you participate! We’ll remove you soon unless you reply to the group or text # stay. Reply # exit to leave.” Plaintiff then received more messages sent by group members, discussing their plans for scheduling a poker game. Plaintiff still did not respond, so he received another message from GroupMe: “We haven’t heard from you, so we removed you from this group to be on the safe side. Don’t worry, though. You can always get back in by replying to this text.” Plaintiff then responded “In,” which added him back to the group, and he continued to receive messages from other group members. Plaintiff filed this action on May 27, 2011, asserting a single claim against GroupMe under the TCPA.
The District Court found that the Defendant did not use an ATDS under the TCPA, finding that the 9th Circuit in Meyer did not adopt a “potential” capacity argument.
Three years after Satterfield, the Ninth Circuit again addressed the “capacity” issue in Meyer v. Portfolio Recovery Associates. 707 F.3d 1036 (9th Cir.2012). The Meyer court initially acknowledged the defendant’s argument that “its dialers do not have the present capacity to store or produce numbers using a random or sequential number generator.” Id. at 1043. However, the court later clarified its understanding of the defendant’s dialers, explaining that the defendant “does not dispute that its predictive dialers have the capacity described in the TCPA.” Id. (emphasis added). Thus, the court found that the defendant’s dialers did indeed have the present capacity to perform autodialing functions, which was “sufficient to determine that [defendant] used an automatic telephone dialing system.” Id. Like Satterfield, the Meyer court did not reach the “present vs. potential capacity” argument, because it was undisputed that the defendant’s dialers “have the capacity described in the TCPA.” Id. at 1043 (emphasis added). Thus, both Satterfield and Meyer are limited to the issue of “capacity vs. actual use,” and neither address the issue of “present capacity vs. potential capacity.” For more definitive support regarding his “potential capacity” argument, plaintiff cites a district court case, Sherman v. Yahoo! Inc., 997 F.Supp.2d 1129 (S.D.Cal.2014). The Sherman court rejected the reasoning of Gragg, Hunt, and other “present capacity” cases, and instead found that the Ninth Circuit “specifically considered and rejected a defendant’s argument that its dialers did not fall within the statutory definition of ATDS because its dialers did not ‘have the present capacity to store or produce numbers using a random or sequential number generator.’ ” Id. at 1142 (quoting Meyer at 1043). For the reasons explained above, the court disagrees with the Sherman court’s conclusion that Meyer specifically rejected the “present capacity” argument. That said, the court agrees with the Sherman court’s very next statement that, in deciding Meyer, the Ninth Circuit “reaffirmed its previous holding in Satterfield that the TCPA focuses on the equipment’s capacity rather than present use.” 997 F.Supp.2d at 1142 (emphasis added). As explained above, the court’s view is that the Ninth Circuit has clearly rejected a focus on “actual use” rather than “capacity,” but has not yet spoken on the issue of “present capacity” versus “potential capacity.” And on that latter issue, the court finds significant the use of the present tense by the statute, by the FCC, and by the Ninth Circuit. The court further finds the reasoning of the Gragg and Hunt courts to be persuasive, that a “potential capacity” rule would “capture many of contemporary society’s most common technological devices within the statutory definition.” Gragg, 995 F.Supp.2d at 1193 (internal citation omitted). Therefore, the court finds that the relevant inquiry under the TCPA is whether a defendant’s equipment has the present capacity to perform autodialing functions, even if those functions were not actually used. If the court had adopted plaintiff’s “potential capacity” view, there would be no dispute that defendant’s equipment was indeed an “autodialer,” and defendant’s motion would need to be denied. However, because the court has adopted the “present capacity” view, it must address the next issue raised by the parties – whether the TCPA’s definition of “autodialer” includes predictive dialers. . . .In its 2008 ruling, the FCC has made clear that the defining characteristic of an “autodialer” is not the ability to make calls randomly or sequentially – instead, the “basic function” of an autodialer is “the capacity to dial numbers without human intervention.” 23 F.C.C.R. at 566. The FCC further discussed the “autodialer” definition in 2012, explaining that it “covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” 27 F.C.C.R. at 15392, n.5 (emphasis added). Thus, while the capacity for random/sequential dialing is not required for TCPA liability, the capacity to dial numbers without human intervention is required. If the court had accepted defendant’s argument that random/sequential dialing were indeed required, then this issue alone would warrant the granting of summary judgment, because plaintiff appears to concede that defendant’s dialers do not have the capacity to dial randomly or sequentially. However, because the court has not accepted defendant’s argument, it must now address the final issue raised by the present motion – whether its equipment had the capacity to send text messages without human intervention. Defendant argues that its system sent text messages only in response to user requests (i.e., in response to human intervention), and thus, does not constitute an “autodialer.” Specifically, defendant points to the text messages described in the FAC, and argues that they were either sent by group members themselves, and merely routed through defendant’s application, or in the case of the Welcome Texts, triggered by the group creator’s addition of plaintiff to the group. In other words, defendant claims that its application “reacted entirely to actions by group members,” and never sent messages without human intervention. In response, plaintiff argues that defendant’s system did indeed dial numbers “from a stored list without human intervention through a straightforward process” of collecting and storing all group member information, automatically generating the pre-programmed Welcome Texts, and sending the Welcome Texts to group members. Plaintiff emphasizes that “[g]roup creators never asked GroupMe to send the [Welcome Texts], did not send the messages themselves, and were never informed that the messages would be sent.” According to plaintiff, “once GroupMe obtained the telephone numbers of the newly added group members,” the “entire process was automated,” and “[n]o human intervention was needed or involved.” Even if the court were to accept plaintiff’s description of the process by which the Welcome Texts were sent, it finds no basis for plaintiff’s argument that the Welcome Texts were sent without human intervention. Plaintiff admits that the Welcome Texts were triggered when “GroupMe obtained the telephone numbers of the newly added group members” (including himself), and ignores the fact that GroupMe obtained those numbers through the actions of the group’s creator. Thus, the Welcome Texts were sent to plaintiff as a direct response to the intervention of Mike L., the “Poker” group creator. Plaintiff makes one additional argument, for the first time on this motion, that defendant’s conduct violated the TCPA even if it did not use an autodialer. The statute makes it unlawful to use “any automatic telephone dialing system or an artificial or prerecorded voice” to place calls to a cellular phone, and plaintiff argues that the Welcome Texts were “artificial, prewritten text messages,” and thus constitute an “artificial or prerecorded voice.” This argument fails for three reasons. First, plaintiff did not plead the use of an “artificial or prerecorded voice” in his complaint. Second, plaintiff admitted in response to a request for admission that defendant “never contacted [him] using an artificial or prerecorded voice.” Dkt. 138–2, Ex. D. Finally, while plaintiff argues that the TCPA’s definition of “voice” is “not limited to verbal communications,” he presents no authority for the argument that a text message can have a “voice” – artificial, prerecorded, or otherwise. In sum, as to the allegedly-offending Welcome Texts, plaintiff has failed to raise a triable issue of fact as to whether defendant’s texting equipment had the capacity to dial numbers without human intervention, as required to be considered an “autodialer” for TCPA purposes. For that reason, defendant’s motion for summary judgment is GRANTED.