Duran v. La Boom Disco, Inc.
369 F. Supp. 3d 476
E.D.N.Y2019Background
- Duran texted La Boom in March 2016 to receive free admission; he was automatically added to La Boom’s SMS database and then received over 100 promotional texts over two years.
- Initial automated “welcome” text granted free admission; later texts promoted events and ticket sales and sometimes included opt-out language.
- La Boom used third-party platforms ExpressText and EZ Texting; users upload numbers, draft messages, select recipient groups, schedule sends, and must click/send or otherwise authorize transmission.
- Plaintiff sued under the TCPA alleging texts were sent using an autodialer (ATDS) without the required prior express written consent for advertising/telemarketing messages.
- District court denied plaintiff’s motion for summary judgment on liability, found as a matter of law that ExpressText/EZ Texting are not ATDSs because they require user selection/timing (human intervention), and granted summary judgment for defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Duran consented to receive advertising/telemarketing texts | Duran argued his single opt-in (texting to get free admission) did not constitute prior express written consent to receive subsequent advertising texts | La Boom argued Duran’s giving his number constituted sufficient prior express consent | Court: Initial automated welcome text was consented to, but that consent did not extend to subsequent advertising/telemarketing texts; defendant failed to prove prior express written consent for later messages (plaintiff wins on consent point) |
| Whether ExpressText and EZ Texting qualify as an ATDS under 47 U.S.C. § 227(a)(1) | Duran argued the platforms send mass texts without per-recipient human action (scheduling/one-click send) and thus operate without human intervention and meet ATDS definition | La Boom argued the platforms require human steps (uploading numbers, drafting, selecting recipients, scheduling and authorizing send) so they lack the autonomous timing/dialing capacity of an ATDS | Court: Under prior FCC guidance and Second Circuit interpretation of "capacity," these platforms require user-determined timing/authorization and therefore are not ATDSs as a matter of law; summary judgment for defendant |
| Legal standard for "capacity" and relevance of FCC 2015 Declaratory Ruling | Duran urged broad reading of "capacity" and reliance on FCC orders that extended coverage | La Boom urged narrower, present-capacity reading and relied on pre-2015 FCC orders and human-intervention focus | Court: Adopted Second Circuit’s approach (capacity = present functions), held ACA Int'l limited the 2015 Order; retained prior FCC guidance emphasizing absence of human intervention as key to ATDS analysis |
| Appropriateness of sua sponte summary judgment for defendant | N/A (motion brought by plaintiff) | La Boom did not object to court resolving ATDS issue on the existing record | Court: Sua sponte grant to defendant was proper because parties fully briefed the identical issue and plaintiff was not procedurally prejudiced; judgment for defendant entered |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. decision invalidating aspects of the FCC's 2015 TCPA Declaratory Ruling)
- King v. Time Warner Cable Inc., 894 F.3d 473 (2d Cir. interpretation of "capacity" as present ability)
- Van Patten v. Vertical Fitness Grp., 847 F.3d 1037 (consent and TCPA/FC C rules on telemarketing consent)
- Ramos v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262 (platforms like EZ-Texting require human steps; not ATDS)
- Bridgeway Corp. v. Citibank, 201 F.3d 134 (sua sponte summary judgment and procedural prejudice)
- Dominguez v. Yahoo, Inc., 894 F.3d 116 (Third Circuit post-ACA discussion of ATDS interpretation)