Marks? What’s Marks?

That’s the question TCPA litigants may be asking themselves after today’s big win by Defendants in Gary v. Gershwin A. Drain Trueblue, Case No. 17-cv-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018). There the Court granted summary judgment to the defendants on the ground that the system used to send the challenged text messages did not have the capacity to randomly or sequentially generate numbers to dial. Thus the system was not an ATDS subject to the TCPA. And Marks was never mentioned.

Avid readers of TCPAland– and who isn’t?–will recall the Trueblue case from the Court’s earlier order denying summary judgment to the Plaintiff back in August. There the court held that the Plaintiff’s lack of  evidence respecting the defendants’ use of a random or sequential number generator precluded summary judgment to the Plaintiff. Not surprisingly given the earlier ruling, the Defendants then turned around and filed a summary judgment motion of their own arguing–not surprisingly given the earlier ruling–that the lack of random or sequential number generation justified judgment in their favor. The court–not surprisingly given the earlier ruling–agreed.  Talk about completing a layup.

Trueblue II, as TCPAland is already calling the decision, tracks the reasoning of the original Trueblue decision and is equally favorable to defendants.

First, ACA Int’l overruled the 2003 and 2008 Predictive Dialer rulings:

In short, because of the D.C. Circuit’s holding in ACA International, this Court need not defer to the FCC’s understanding of the capacity and functions of an autodialer under the TCPA.

Trueblue II at *7-8.

Next, the Court finds that random or sequential number generation is required to make an ATDS an ATDS:

To qualify as an automated telephone dialing system under the TCPA, a piece of equipment must have the capacity to (1) store or produce telephone numbers to be called, using a random or sequential number generator, and (2) dial such numbers. 42 U.S.C. § 227(a)(1).

Trueblue II at *10.

And, finally, the Court finds that Defendants’ dialer did not generate numbers in random or sequential fashion:

Defendants have presented evidence that WorkAlert lacks the capability to randomly or sequentially dial or send text messages. Hence, even viewing all the evidence in a light most favorable to Plaintiff, no reasonable juror could decide in Plaintiff’s favor on this issue.

Trueblue II at *12.

Well there you go. Judgment for the defense.

But we have some bonus material to consider. Most importantly, the Court holds directly that the Defendants’ dialing systems are not an ATDS even if they operate automatically.  (Where’s that finger-stroking-chin emoji thing found on the keyboard?)

Indeed, the Court absorbed the Plaintiff’s copious evidence respecting the automated nature of the Defendants’ system with good humor before casting it all aside with an icy one-liner:

But more to the point, the plain language of the TCPA does not prohibit the use of devices with automated functions

Trueblue II at *14.

So…yeah. Marks? What’s Marks? 

Trueblue II is the first ATDS functionality test to be decided after the Marks decision and it is reMarksable(too much?) that the Court did not mention the Ninth Circuit Court of Appeal’s big ruling. Nonetheless, this is a huge win for defendants and an enduring reminder that most courts will read the TCPA’s statutory language to include, you know, the statutory language–including the requirement of the use of a random or sequential generator to qualify as an ATDS.

Someone let the FCC know ok? Comment period closes soon.