In Gragg v. Orange Cab Company, decided on February 7, 2014 in the Western District of Washington, a class-action defendant accused of sending mass texting messages without prior consent was granted partial summary judgment on all claims under the Telephone Consumer Protection Act (TCPA). Although the defendant, a taxi cab company, unquestionably was responsible for the text messages at issue, and prior express consent was far from clear, the judge granted its summary judgment motion. The basis for the ruling was that the defendant did not use an automatic telephone dialing system (ATDS) to send the texts. According to the judge, the plaintiff “failed to provide the Court with any evidence that [the technology used to send the text messages] has the capacity to randomly or sequentially generate telephone numbers to be stored, produced, or called.”
Furthermore, Judge Lasnik found it significant that a cab driver had to accept the order before a text was sent out to the consumer. The texting system worked as follows: the consumers had to provide some amount of information to the taxi dispatcher, the dispatcher pressed “enter” to transmit the information to the nearest available driver, and the driver then pressed “accept” to alert the consumer that a cab was on the way. “The level of human agency involved in transmitting the text dispatch notifications is sufficient to qualify as ‘human intervention.’ The system is able to dial and transmit the dispatch notification only after the driver has physically pressed ‘accept’: human intervention is essential. The Court therefore finds that the TaxiMagic program is not a predictive dialer [that would qualify as an ATDS].”
The Court therefore dismissed that TCPA claims. The plaintiff continues to maintain separate claims under Washington state law.
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