In Glauser v. GroupMe, Inc., the Northern District California granted summary judgment in favor of GroupMe, Inc. (“GroupMe”) in a putative class action alleging that GroupMe sent text messages via an automatic telephone dialing system in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
GroupMe offers a “group messaging” application, which allows individual users to create a “group” and to transmit text messages to all members of the group at the same time. In April 2011, the plaintiff, Brian Glauser, received a text message, reading, in part: “Hi Brian Glauser, it’s Mike L. Welcome to GroupMe! I just added you to “Poker” w/Richard L. Text back to join the conversation.” After receiving several messages from other “group” members, in May 2011, Glauser filed a putative class action against GroupMe under the TCPA.
The TCPA prohibits using an “automatic telephone dialing system” (“ATDS”) to make a call, including sending text messages, to a mobile phone without the prior express consent of the called party. An ATDS is statutorily defined as equipment that “has the capacity (A) to store or produce numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” GroupMe moved for summary judgment on the grounds that the platform it used to send text messages does not qualify as an ATDS under the TCPA because it lacks the capacity to function as an ATDS.
GroupMe argued that liability under the TCPA requires the dialing platform to have the “present capacity” (or “actual capacity”) to function as an ATDS, which the GroupMe platform did not have. Glauser opposed, arguing that a device that has the “potential capacity” to function as an ATDS qualifies as an ATDS under the TCPA, even if the device was not actually used as an ATDS in sending the message at issue.
The District Court rejected Glauer’s argument and also distinguished two prior decisions from the Ninth Circuit holding that dialing equipment may quality as an ATDS when it has the “capacity” to act as an ATDS, even if it was not used as an ATDS in sending the offending messages. Specifically, the District Court held that there was a distinction between the issues of “present vs. potential capacity” (i.e., which asks whether the dialing platform presently could be used as an ATDS) and “capacity vs. actual use” (i.e., which assumes that the dialing platform presently could be used as an ATDS and instead asks whether the offending messages were in fact sent via an ATDS function).
The court concluded that “the relevant inquiry under the TCPA is whether a defendant’s equipment has the present capacity to perform autodialing functions, even if those functions were not actually used.” The court also noted that under the plaintiff’s “potential capacity” test, everyday devices such as smartphones could be misconstrued as an ATDS under the TCPA.
The District Court also held that GroupMe’s messaging system did not have the capacity to send text messages “without human intervention” (another requirement of an ATDS according to FCC interpretations). While Glauser argued that the messages were sent “automatically” after group member information was put into GroupMe’s system, the Court noted that messages were only sent “as a direct response to the intervention” of the individual group creator who input group members’ information, and in response to other messages written individually by group members.
Accordingly, the District Court entered summary judgment in favor of GroupMe and denied (as moot) Glauer’s motion for class certification.
