No sooner do I deem the 2003 and 2008 predictive dialer rulings dead than does a case come and apply them anew. Sort of.

As I have stated repeatedly on the lecture circuit, Courts actually apply five different ATDS analytic frameworks. Arguably the most confusing of those frameworks is the one where a Court concludes that the 2003 FCC ruling remains intact merely for the purpose of concluding that a dialer that calls with “human intervention” is not an ATDS. Courts applying this line of reasoning look to FCC rulings expanding the scope of the statute for the sole purpose of finding equipment does not meet the expanded definition. Seems like it would be a whole lot easier just to apply the statutory definition and get to the same result a lot more quickly.

Setting aside analytic concerns, the Magistrate Judge’s recommendation in Decapua v. Metro. Prop. & Cas. Ins. Co., C.A. No. 18-00590-WES 2019 U.S. Dist. LEXIS 168061 (D. R.I. Sept. 30, 2019) is yet another example of how “human intervention” is in the eye of the beholder and why the TCPA remains a formless statute that is vague as the day is long. Indeed, the Decapua court observes that the TCPA is an “unusually confusing statute” and catalogs the boundless difficulties apparent in applying the statute’s amorphous ATDS definition:

Although simply stated, the issue is far from simple and is currently the subject of (1) a Circuit split; (2) disagreement among Courts about the scope of a 2018 D.C. Circuit decision invalidating FCC guidance; and (3) ongoing FCC proceedings to issue further guidance on the interpretation of the TCPA and the term ATDS.

Sounds like a statute that’s void for vagueness to me.

But setting aside constitutionality concerns, the Decapua court analyzes the application of the TCPA to the EX Texting Platform and concludes the texts “violated the spirit but not the letter of the TCPA.”

In reaching that conclusion the Court closely followed two earlier decisions that upheld the same texting platform—Ramos and Duran. In the end, the Court adopted the findings in those earlier decisions and concluded that sufficient “human intervention” existed in the platform’s set up to assure that messages sent using the system are not subject to the TCPA.

Specifically, the “EZ Texting system cannot send a text without a person physically inputting numbers, drafting a message, selecting recipients, choosing a date and time to send the message, and manually hitting a ‘send’ button.”

Notice, however, that the texts are still sent “automatically” after the campaign parameters are loaded and the Defendant presses the “go” button. Without question, some courts would deem this same platform to be an ATDS owing to the automatic nature of the transmission of the texts after the creation of the campaign. And that, of course, demonstrates the very “confusion” the Court observed at the outset of its opinion.