The Sapphire Gentlemen's Club in Las Vegas sends promotional text messages to its customers. Doing so involved multiple steps. First, a Club employee inputs telephone numbers into a mobile marketing website. He does this by either manually typing the number or by uploading or cutting and pasting an existing list of phone numbers to the website. Next, the Club employee types the message's content, and designates the specific phone numbers to which the message would be sent. He would then click "Send" on the website in order to deliver the messages in real time or at some future date.
In a decision issued earlier this week, Magistrate Judge Howard R. Lloyd of the U.S. District Court for the Northern District of California ruled that this level of human intervention defeated plaintiff's claim that the Club contacted him using automatic telephone dialing technology in violation of the Telephone Consumer Protection Act.
This decision is important because it interprets and relies upon the FCC's July Declaratory Ruling and Order regarding the definition of an autodialer. In that order, the FCC refused to establish a bright line rule stating that any human intervention precludes a finding that a given piece of telephone equipment is an autodialer. Instead, the FCC stated that determination would have to made on a case-by-case basis.
In this case, the human intervention was significant. It was not simply limited to an act of uploading telephone numbers to a database as plaintiff claimed. It also involved drafting a message, determining the timing of the message and clicking "Send" to transmit the message. That was enough human intervention to carry the day for the Club. Summary judgment was granted in its favor.
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