District Court (Fla.) Follows 11th Cir. and Says No ATDS Was Used to Send Text Messages

In Northrup v. Innovative Health Ins., No. 8:17-cv-1890-T-36JSS, 2020 U.S. Dist. LEXIS 31851, at *12-21 (M.D. Fla. Feb. 25, 2020), Judge Honeywell granted summary judgment to a TCPA defendant.

The Eleventh Circuit’s holding that a device qualifies as an ATDS only if it uses a random or sequential number generator resolved a large part of the consolidated appeals. One of the two appeals, taken from the Middle District of Florida  and involving plaintiff Melanie Glasser (the “Glasser case”), was also affirmed for a second reason: the device there “required human intervention and thus was not an [ATDS] in the first place.” Id. at 1312.  The device in the Glasser case, called “Intelligent Mobile Connect,” operated as follows.  “Each week, a Hilton marketing team creates a set of parameters about whom they want sales agents to contact. The team programs the system with these criteria, and the system selects customer records that fit the bill. The system then sends these numbers to Hilton employees who review the telephone numbers in a computer application. On their screens, the employees see a telephone number and button labeled “make call.” Unless and until the employee presses this button, no call goes out. Once the button is pressed, the system dials the number and connects anyone who answers with a sales agent.”  Id. Such a system, which “require[d] a human’s involvement before it places any calls,” obliged “far more from its human operators than just turning on the machine or initiating its functions.” Id.  The Eleventh Circuit’s conclusions in Glasser dictate the result here. Neither 212CRM nor Twilio qualify as an ATDS for the [*14]  reasons that (1) neither had the capacity to randomly or sequentially generate numbers and (2) both require human intervention. The Court discusses both considerations below.  A. Random or Sequential Number Generator Defendants contend they are entitled to summary judgment because neither 212CRM nor Twilio qualify as an ATDS. Doc. 94 at pp. 13-15. Neither system is an ATDS, Defendants assert, because neither had the capacity to generate random or sequential numbers. Rather than generate phone numbers to be dialed, both 212CRM and Twilio utilized numbers provided from another source. Plaintiff, who filed his response in this case before the Eleventh Circuit’s opinion in Glasser, cites to Marks in support of his position that a telephone dialing system that dials from a prepared list of phone numbers rather than numbers it generates may still be an ATDS. Doc. 97 at p. 10. Given that Glasser rejected Marks, however, Plaintiff can no longer rely on this argument. . . .Defendants cite to record evidence showing neither 212CRM nor Twilio can generate random or sequential numbers. Rather than create numbers to be dialed, 212CRM and Twilio use prepared lists of numbers provided by a user. SF at ¶¶ 2-3, 17; Pearson Decl. at ¶¶ 3-5, 7, 10. In this case, CyberX’s president, Pearson, provided 212CRM and Twilio with the purchased phone numbers from FleetSeek contained in the spreadsheet. SF at ¶¶ 10-15. 212CRM processed and Twilio delivered messages to only those phone numbers uploaded by Pearson. Id. Evidence that neither 212CRM nor Twilio can generate random or sequential numbers is provided in the parties’ Statement of Material Undisputed Facts. For the most part, Plaintiff does not contest that neither 212CRM nor CyberX could generate random or sequential numbers. In a seemingly last ditch effort, however, Plaintiff alleges “212CRM generated the phone numbers for the text messages dispatched . . . from a FleetSeek database.” Doc. 97 at p. 3. As an initial matter, Plaintiff’s allegation is just that—an allegation. Plaintiff provides no record citation for his position that 212CRM had the ability to “generate” anything. In any event, though, Plaintiff’s assertion makes no sense: in the same breath, Plaintiff alleges both that 212CRM “generated” phone numbers and that the phone numbers came from third party FleetSeek. But if the phone numbers came from a third party and text messages were only sent to those phone numbers, as the record evidence shows, 212CRM would not have generated phone numbers.  Defendants have identified undisputed record evidence showing that 212CRM and Twilio cannot generate random or sequential numbers. Viewing the evidence in a light most favorable to Plaintiff, Plaintiff has not designated specific facts creating a genuine issue of material fact. Because neither 212CRM nor Twilio have the capacity to generate random or sequential  numbers, as a matter of law, neither is an ATDS. Therefore, Defendants are entitled to summary judgment.  B. Human Intervention  Defendants are also entitled to summary judgment based on the second consideration discussed in Glasser—human intervention. Defendants argue the amount of human intervention exercised by CyberX in sending the text messages through 212CRM and Twilio makes the two devices fall outside the definition of ATDS. Doc. 94 at p. 8. Defendants direct the Court to record evidence describing the steps CyberX’s president, Pearson, took to have the messages sent through 212CRM and Twilio.  First, Pearson navigated to the CyberX application, 212CRM, and logged in. Doc. 94, Exh. A-3, Deposition of Pearson (“Pearson Depo.”) at 96:12-96:21. Next, Pearson uploaded the spreadsheet containing purchased customer data (including phone numbers) to 212CRM. Id. at 22:5-22:6, 23:1-23:9; Pearson Decl. at ¶ 3. Next, Pearson reviewed the uploaded spreadsheet, checking for errors and manually aligning the data columns. Pearson Depo. at 22:2-22:11, 24:20-24:23; Pearson Decl. at ¶ 4. After managing the data in 212CRM, Pearson then typed the content of the message to be sent. Pearson Depo. at 26:18-26:22, [*18]  32:25-33:5; Pearson Decl. at ¶ 5. Pearson then set a sending interval, communicating to 212CRM how many messages to send in a certain period of time. Pearson Decl. at ¶ 6. Lastly, Pearson pointed and clicked on a “send” button to begin the process of immediately communicating instructions to Twilio to send the chosen message to the uploaded phone numbers. Pearson Depo. at 62:19-62:24; Pearson Decl. at ¶¶ 6-7.  Plaintiff does not dispute that Pearson took these actions to initiate the sending of text messages. Rather, Plaintiff focuses on the fact that (1) Pearson’s actions were all taken before the devices dialed and (2) Pearson typed only one message to be sent to thousands of phone numbers, rather than creating separate messages for each phone number. Doc. 97 at pp. 6-7. These facts, Plaintiff contends, show the amount of human intervention required was not so extensive after all.  Plaintiff’s emphasis on the fact that instances of human intervention occurred before the devices dialed is not persuasive. In Glasser, too, all instances of human intervention occurred before dialing. 948 F.3d at 1312. That a device, instead of a human, does the dialing itself is not determinative; the question is how much [*19]  action a human must take to initiate the device’s features.  Concerning his second argument, Plaintiff contends a device is not an ATDS only if a separate act of human intervention is required for each individual call. Doc. 97 at p. 7. Thus, Plaintiff argues, Pearson’s actions of typing a single message and hitting “send” once to initiate the dialing and sending of messages to thousands of numbers does not disqualify the devices from being ATDSs. This argument is undercut by Glasser as well. In Glasser, the Eleventh Circuit acknowledged that not all forms of human intervention would negate the prospect of a device qualifying as an ATDS. See 948 F.3d at 1312. But, like in Glasser, the devices at issue here “demand[] far more from its human operators than just ‘turning on the machine or initiating its functions.'” Id. (distinguishing Marks, 904 F.3d at 1052-53). . . .As in Herrick, here, Pearson took a variety of actions before 212CRM and Twilio were able to dial the phone numbers and send the selected message. Plaintiff quarrels with the accuracy of some of the specific, non-relevant details—for example, exactly how many messages  Pearson scheduled to have sent in a certain amount of time. Doc. 97 at pp. 5-6. But the numerous actions Pearson took to initiate dialing—uploading a list of phone numbers, reviewing the content of the data, logging in, typing a message, setting an interval, and clicking “send”—is undisputed. The amount of human intervention required to send the text messages at issue in this case excludes both 212CRM and Twilio from qualifying as an ATDS.