As the Telephone Consumer Protection Act (“TCPA”) case law surrounding automated telephone dialing system,s (“ATDS”) continues to emerge, a noticeable distinction seems to be developing between cases analyzing “automated” phone calls and those analyzing text messages. In the context of phone calls recent decisions seem to be increasingly following Marks–despite the fact that the Ninth Circuit truly takes the TCPA to untenable extremes in its ruling— but text message cases continue to look at human intervention in the creation of dialing lists as sufficient to defeat TCPA claims.

The latest case of this sort was decided on Friday in Gaza v. Auto Glass America, LLC, Case No. 8:17-cv-01811, Doc. No. 42 (M.D. Fl. Nov. 2, 2019) found here: Gaza v. Auto Glass America (MD FL)

In Gaza the Defendant was awarded summary judgment in a text message TCPA claim because the Plaintiff had failed to demonstrate ATDS usage. Critically, the Defendant utilized a text message platform that seemingly sent texts in an automatic fashion after the text message recipients and messages were chosen by the Defendant.  Nonetheless, the Court found–on the record before it–that sufficient human intervention in the creation of the dialer list was demonstrated to defeat any inference that an ATDS was used.

The key pieces of human intervention evidence that Court considered were:

• the creation of a dialer list by virtue of manual review of invoices and other documents to create an excel spreadsheet of phone numbers and contact info
• the need to sign into the text message provider’s website to upload the spreadsheet before launching a campaign
• the need for defendant to specifically select each number that would receive the message and to determine the content of the message to be sent in the campaign
• the text message platform provider was not allowed to send messages randomly

While this is a great result for Defendant, such a ruling is plainly contrary to the rationale in Marks–which was not mentioned in Gaza. This is so because Marks does not focus on the human intervention needed to create the list, but rather on the lack of human intervention at the time the messages are sent.  Indeed, the Marks defendant too pointed to human intervention elements in the creation of its dialer list, but the Marks court was unmoved by such pre-dialing intervention efforts and looked solely at the storage of numbers and then the automatic transmission of messages by the dialer.

Notably, the Plaintiff in Gaza was a pro per and failed to introduce evidence of the “inner workings” of the text message platform after the Defendant had selected the text recipients and pressed “send.”  So one could argue that Gaza did not follow Marks merely because sufficient evidence of the automated transmission of the texts was not presented to the court.  Still though, Gaza looks and feels much more like the pre-Marks decision in Ramos and that may suggest that courts are prepared to focus more on pre-dialer intervention in text message cases.

More to come as the post-Marks TCPAland landscape continues to develop.