Text Messaging Program Not an Autodialer Under the TCPA

The United States District Court for the Northern District of California recently held in the putative class action Glauser v. GroupMe, Inc. that GroupMe’s text messaging program was not an autodialer under the Telephone Consumer Protection Act (TCPA). Congress enacted the TCPA in 1991 in an effort to address a growing number of telephone marketing calls. The Act restricts telemarketing calls and the use of automatic telephone dialing systems, or “autodialers,” and artificial or prerecorded voice messages. The TCPA also applies to common carriers and other marketers including loan servicers, banks, and other lending institutions. It provides a private right of action and statutory damages in the amount of $500 for each violation and up to $1,500 for each willful violation. When multiplied against a large number of calls, messages or fax transmissions, potential damages in TCPA cases can be significant. For these reasons, TCPA case filings are on the rise.

In GroupMe, in 2011, a group creator requested that GroupMe add individuals to its poker group. The group creator provided the names and cell phone numbers to GroupMe. GroupMe then sent group text messages inviting the plaintiff and others to join the creator’s poker group. Plaintiff alleged, among other things, that GroupMe’s text messaging program qualified as an autodialer under the TCPA.

The TCPA defines an autodialer as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers.”

The Court granted GroupMe’s motion for summary judgment, holding that plaintiff failed to show that GroupMe’s program was an autodialer under the TCPA. The Court concluded that:

1. the relevant inquiry is whether the equipment has the present capacity to perform autodialer functions, even if those functions were not actually used;
2. predictive dialers that dial numbers using call lists are included under the TCPA; and
3. if the equipment requires human intervention to dial numbers, it is not an autodialer under the TCPA.

The Court found that GroupMe’s text messages required the group creator’s human intervention and therefore was not an autodialer under the TCPA. The case is currently on appeal before the United States Court of Appeals for the Ninth Circuit.  Until any new developments, defendants will have to keep fighting the good fight to persuade courts that the narrow definition of autodialer is the best interpretation. Stay tuned for more.