Another Text Message TCPA Case Dismissed After Defendant Passes the Human Intervention Test

As the Telephone Consumer Protection Act (“TCPA”) case law surrounding automated telephone dialing system,s (“ATDS”) continues to emerge, a noticeable distinction seems to be developing between cases analyzing “automated” phone calls and those analyzing text messages. In the context of phone calls recent decisions seem to be increasingly following Marks–despite the fact that the Ninth Circuit truly takes the TCPA to untenable extremes in its ruling— but text message cases continue to look at human intervention in the creation of dialing lists as sufficient to defeat TCPA claims.

The latest case of this sort was decided on Friday in Gaza v. Auto Glass America, LLC, Case No. 8:17-cv-01811, Doc. No. 42 (M.D. Fl. Nov. 2, 2019) found here: Gaza v. Auto Glass America (MD FL).

In Gaza the Defendant was awarded summary judgment in a text message TCPA claim because the Plaintiff had failed to demonstrate ATDS usage. Critically, the Defendant utilized a text message platform that seemingly sent texts in an automatic fashion after the text message recipients and messages were chosen by the Defendant.  Nonetheless, the Court found–on the record before it–that sufficient human intervention in the creation of the dialer list was demonstrated to defeat any inference that an ATDS was used.

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