Advertising Law Blog

In Glauser v. GroupMe, Inc., decided on February 4, 2015 in the Northern District of California, a group messaging application prevailed in a class action lawsuit when the court ruled that the app was not an automatic telephone dialing system.  Because the text messages were not sent via automatic dialing system, a required element of a Telephone Consumer Protection Act (TCPA) claim was not satisfied, and therefore the plaintiff lost on summary judgment.

One of the most active battlegrounds in TCPA lawsuits concerns whether defendants used an automatic dialing system. A successful TCPA lawsuit requires a plaintiff to prove a telephone call or text message was made without prior express consent of the called party using, in the case of cell phone, an automated dialing system or recorded message, or in the case of a residential telephone line, a recorded message (at least for phone calls or test messages. Unsolicited faxes do not require automated dialing systems to be actionable).  

However, because technology has changed so much since the TCPA was enacted in 1991, it is often debatable whether the definition has been met.  This is a topic we have blogged about before. In this case, plaintiff Brian Glauser received two welcome text messages when an acquaintance signed him up to receive group texts from a poker group the acquaintance put together.  Glauser accepted the invitation to become part of the group, but sued over the first two welcome texts, which he said were unsolicited.

The TCPA defines an automatic telephone dialing system as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Keep in mind, text messages did not even exist when the TCPA was written, and today, any smart phone has capacity to store or produce telephone numbers. Courts, therefore, are left to wrestle with adapting the law to current devices.

In the case of GroupMe, the court decided 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.”  The Court looked beyond the statutory definition of automatic telephone dialing system to include 2008 and 2012 FCC rulings that considered whether the equipment could dial numbers “without human intervention.”

Looking at the way the GroupMe app functioned, the court accepted GroupMe’s argument that its system sent text messages only in response to user requests (i.e., in response to human intervention), and thus, did not constitute an autodialer. The messages, continued GroupMe, were sent by the Poker group members themselves and were merely routed through the GroupMe app. The court accepted this argument concluding that there was sufficient human intervention in the process such that the messages were not sent by an automated dialing system.  Summary judgment was granted to GroupMe.