The District Court for the Middle District of Florida recently added to TCPA case law concerning the level of human intervention required to defeat claimed use of an automatic telephone dialing system, or “ATDS,” in a TCPA lawsuit. In Gaza v. Auto Glass America, LLC, Case No. 8:17-cv-01811, Doc. No. 42 (M.D. Fl. Nov. 2, 2019), the Court granted defendant Auto Glass America’s motion for summary judgment because plaintiff Jason Gaza had failed to demonstrate that the text messages at issue were sent using an ATDS.
Auto Glass America presented evidence to show that the text messages sent on behalf of the company utilized manual entry and uploading onto an online website before being sent out. A representative from the windshield repair company would enter prior customers’ information into a spreadsheet and upload the spreadsheet to a website called “Textedly.” The representative would then select who would receive a message, type out a message, and press “send.” The Court held that, based on this evidence, Gaza had not presented sufficient evidence to show that an ATDS was used.
Notably, Gaza failed to present evidence of the inner workings of Textedly. The Court noted an absence of evidence showing how the website platform sends messages which could have established that Textedly used an ATDS. Because Gaza failed to argue that the software utilized by Textedly qualified as an ATDS, the Court did not engage in an analysis under the recent Ninth Circuit TCPA decision in Marks v. Crunch San Diego or other decisions throughout the country.