US District Court Spares Gentlemen's Club a TCPA Fine for Calling
August 25, 2015
By Tracey E. Schelmetic, TMCnet Contributor
In the world of the Telephone Consumer Protection Act (TCPA), the legislation that governs telemarketing in the United States, there has been a great deal of confusion over what qualifies as an automated outbound call, or an autodialed call. While the use of dialers certainly puts a call firmly into the automated telemarketing category, the use of text messaging has been much less clear. While the FCC (News - Alert) has issued a declaratory ruling designating automated text messaging and automated telephone calls (robocalls) as telemarketing, some courts have shown leniency for marketers who retain some manual process over sending the messages. In these cases, the messages are considered communications with an established customer rather than automated messages for which the sender has no opt-in permission.
A company called Shac, the operator of the Sapphire Gentlemen’s Club in Las Vegas, recently won a TCPA violation victory in the U.S. District Court for the Northern District of California. The company was spared a proposed class action lawsuit under the TCPA because it was able to prove that the promotional text messaging system used by Shac – the CallFire platform -- involved human intervention and, therefore was not considered to be illegal use of an autodialer, according to a recent blog post for the law firm Klein, Moynihan Turco.
“In order to deliver text messages, a Shac employee would input customers’ telephone numbers into CallFire’s platform either by manually typing customer numbers into the website, or by uploading or cutting and pasting an existing list of numbers,” wrote the blogger. “Alternatively, Shac’s customers could add themselves to the platform by sending an opt-in text message to the system. Once numbers were added to the CallFire platform, the employee would draft and type the text message content, designate the specific phone numbers to which the message would be sent and then send the message (either in real time, or scheduled to be transmitted at a future time/date).”
The case hinged on whether a human sent the message, or a computer sent the message. In ruling for Shac that the human intervention negated the autodialer prohibitions, the company was spared potentially very costly FCC fines. Existing case law has found that “the capacity to dial numbers without human intervention is required for TCPA liability.”
Telemarketing companies should hold off on celebrating, however. Last month, the FCC released its latest TCPA Declaratory Ruling and Order, which included a broader interpretation of the autodialer definition. The new ruling labels practically every telemarketing device on the market as an autodialer, even if the call is made with human intervention or the device is not presently used as an autodialer, according to Klein, Moynihan Turco.
“The FCC ruling expressly rejected arguments ‘that the Commission should adopt a ‘human intervention’ test’ and concede ‘that a dialer is not an autodialer unless it has the capacity to dial numbers without human intervention.’”
Given this new declaratory ruling, going forward, it seems unlikely that companies such as Shac will continue to dodge liability because someone cuts and pastes a few numbers into a database.
Edited by Rory J. Thompson