TCPA Compliance of Text Messages Reexamined
Back in August, we shared with you the results of Nelson vs. Receivables Outsourcing, LLC. In this case, it was determined by a court in New Jersey that a text message was not a third party disclosure. Now, we have another ruling regarding the compliance of text messages. This time, the case comes out of the Middle District of Florida.
- Plaintiff provided his cellphone number to have his windshield replaced. 2 years after it was replaced, the plaintiff received 5 text messages containing the defendant’s phone number.
- After googling the number that texted his phone (“332222”) he found it belonged to a “Textedly” website.
- In a relatively straightforward claim, the plaintiff alleged that Auto Glass America sent text messages to his cellphone without his consent.
- Auto Glass America filed for summary judgment, claiming the plaintiff failed to produce evidence that an ATDS was used.
- The defendant was awarded summary judgment.
- While the defendant did use a platform that sent texts automatically, the Court determined there was sufficient human intervention in creating the list to uphold a claim of an ATDS.
- According to Eric Troutman, the key pieces of human intervention considered in this case were:
- The manual creation of a dialer list based on invoices and other documents held by Auto Glass America, LLC
- The need to sign into the platform’s website to upload the curated spreadsheet
- The requirement to select each number that would receive a corresponding message
- Lastly, the platform was not authorized to randomly send text messages
Key Takeaway: In direct contradiction to Marks, this case focuses on the human intervention required before the messages were sent, and not at the time the messages were sent.