“Human Intervention” by Strip Club is Sufficient to Defeat a TCPA Claim

In a decision issued on August 19, 2015, Magistrate Judge Howard R. Lloyd of the U.S. District Court for the Northern District of California ruled that “human intervention” defeated a claim that a strip club contacted a consumer using an automatic telephone dialing system (ATDS) in violation of the Telephone Consumer Protection Act.

The facts of this case were not disputed.  SHAC, LLC, dba Sapphire Gentlemen’s Club, operates a strip club in Las Vegas, Nevada. SHAC engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (EXTexting.com) for sending promotional text messages to its customers.

Sending text messages through EXTexting.com involved multiple steps. First, an employee of SHAC would input telephone numbers into CallFire’s web-based platform either by manually typing a phone number into the website, or by uploading or cutting and pasting an existing list of phone numbers into the website. Next, the employee would log in to EXTexting.com to draft and type the message content. The employee would then designate the specific phone numbers to which the message would be sent, then click “send” on the website in order to transmit the message to SHAC’s customers. The employee could either transmit the messages in real time or preschedule messages to be transmitted “[a]t some future date.”

insideARM Perspective

The 10 page order is significant for several reasons.

First, the order is one of the first court rulings discussing the FCC’s July Declaratory Ruling and Order; specifically, that portion of the ruling and order regarding the definition of an ATDS. In that order, the FCC did not provide meaningful guidance on what level of human intervention was required to determine that the equipment used and the process followed would preclude determination that a particular piece of equipment was an ATDS.  Instead, the FCC allowed that determination to be made on a case-by-case basis.

Secondly, the court determined that the multiple steps described above that were required to send the text message were, in total, sufficient human intervention to defeat the TCPA claim. The court held:

“…Human intervention was involved in several stages of the process prior to Plaintiff’s receipt of the text message, and was not limited to the act of uploading the telephone number to the CallFire database, as Plaintiff argues. As explained above, human intervention was involved in drafting the message, determining the timing of the message, and clicking “send” on the website to transmit the message to Plaintiff.

Accordingly, because the court finds that the subject text message was sent as a result of human intervention, the court grants summary judgment in favor of Shac.”

This may be the first time in the history of this publication that we have highlighted a case involving a strip club. However, regardless of the type of business, the case is relevant to the industry. It may not be the definitive ruling on “human intervention” in a TCPA case, but it provides direction to the industry.

The question remains for the ARM industry. What level of human intervention is sufficient? Is manually creating a list of numbers sufficient? Is manually entering the 10 digit phone number required? Can you highlight a phone number and press a single key? The answers are not absolute in this decision, but there is some guidance.

By Tim Bauer