In a recent decision applying established Telephone Consumer Protection Act law to the developing text application market, the U.S. District Court for the Northern District of California found in Glauser v. GroupMe, Inc. that group texts did not violate the TCPA because they required human intervention. Specifically, the court found that the “welcome texts” – notifying the plaintiff that he had been joined to a poker group and providing messaging and opt out information – were triggered by the creation of a new group. The court determined that the texts were sent to the plaintiff as a direct response to the human intervention of the individual who created the poker group.
The court also weighed in on the controversy surrounding the term “capacity” as it is used in the statutory definition of an automatic telephone dialing system (ATDS). Courts disagree about whether the term means the present capacity of a system to autodial numbers, or its potential capacity to do so. Although the Glauser court found that the Ninth Circuit has not clearly addressed the issue, it 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 commented that a potential capacity rule would “capture many of contemporary society’s most common technological devices within the statutory definition.”