The eighth circuit contains a text system that randomly selects phone numbers from the database that does not qualify as ATDS | Troutman pepper
On March 24, the Eighth Circuit Court of Appeals issued an opinion, upholding separate district court decisions finding that a system that sends promotional text messages to randomly selected phone numbers from a database of customer information is not an automatic telephone dialing system (ATDS ) under the Telephone Consumer Protection Act (TCPA). The concise advice espouses a commonsense reading of the word “produce”, finding that the word requires an ATDS to generate a random number, rather than select a number at random.
District court decisions
In two separate Western District of Missouri decisions, plaintiffs Colby Beal and Zachary Smith alleged that they received promotional text messages from separate bar establishments, both of which used marketing software called “Txt Live.” The Txt Live software includes a database that stores contact information. Defendants’ employees manually entered contact information, including phone numbers, into the database – a system with no ability to randomly or sequentially generate phone numbers.
To send bulk SMS, Txt Live users filter the recipients, select the number of potential customers, write the content of the SMS, then click “send”. The system then shuffles the target contacts, a process the court likened to shuffling a deck of cards, and then selects the recipients at the top of the list. The two district court judges found that the “mixing of numbers” did not constitute a random selection of phone numbers to call.
Eighth Circuit decision
The Court of Appeals upheld the district court rulings, focusing on the meaning of the word “produce” in the statute and concluding that the TCPA requires a system to “produce” by “generator a random number. And, because the Txt Live system does not generate telephone numbers to call, it does not “generate telephone numbers to call” under the law. Although the appellants argued that this reading changes the law to write the word “generated”, the court disagreed, holding that it “simply interprets[ed] the word “produce”, a word the court found does not include selection of numbers.
The Court also concluded that the opinion of the Supreme Court in Facebook v Duguid “strongly reinforced” its conclusions. Not only has the Eighth Circuit concluded that the Txt Live system “is exactly the type of equipment Facebook excluded” from the definition of an ATDS, the court also dismissed the infamous “Footnote Sevenargument. When counsel for the appellants argued that footnote seven of the Facebook decision saved his argument that the Txt Live system was an ATDS because it stored numbers to be dialed later, the court disagreed. “Like other courts, we do not believe that [Supreme] The court’s footnote states that it believes systems that randomly select non-random phone numbers are auto-diallers. Rather, the system is simply a “simply storing and dialing phone numbers”.
The opinion is one of the first appellate decisions to be interpreted Facebook and, moreover, one of the first major opinions applying the footnote seven argument specifically to text messaging systems, as the majority of footnote seven arguments were directed at dialers predictive. In a circuit largely silent on pre-TCPA issuesFacebookThe decision represents a succinct, no-nonsense summary of TCPA’s issues following the Supreme Court’s decision, resolving those issues in favor of TCPA’s defendants.