312 F. Supp. 3d 792
D. Ariz.2018Background
- GoDaddy contracted with 3Seventy to send a one-time promotional text campaign in 2015; Plaintiff received one such text on December 15, 2015 and sued under the TCPA for texts sent by an ATDS without consent.
- GoDaddy uploaded customer phone numbers to 3Seventy via FTP; a GoDaddy employee logged into 3Seventy's web platform, drafted the message, scheduled delivery, and entered a 12‑character captcha to authorize sending.
- The 3Seventy platform transmitted scheduled messages to an SMS gateway aggregator which then delivered them to carriers.
- Key undisputed facts: numbers were provided by GoDaddy (not generated by the platform), GoDaddy (or its employee) performed multiple manual steps including final authorization, and 3Seventy controlled any substantive platform reprogramming.
- Procedurally: Plaintiff moved to strike GoDaddy’s consent defense; GoDaddy moved for summary judgment arguing the platform is not an ATDS and alternatively sought a stay; the court considered the D.C. Circuit’s ACA Int’l decision addressing FCC guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 3Seventy Platform is an ATDS because it can "store or produce telephone numbers using a random or sequential number generator" | The platform can store/call preprogrammed lists and thus qualifies under FCC guidance | The platform lacked any capacity to generate numbers randomly/sequentially and could only dial user‑supplied lists; reprogramming to add generation would require 3Seventy action | The platform did not have the statutory capacity to store/produce numbers via a random/sequential generator; possible reprogramming required substantial action by 3Seventy, so no ATDS capacity as to (A) |
| Whether ability to send without human intervention is required and present | The FCC's 2015 Order rejected a per se human‑intervention test; platform sending was effectively automatic | The text required multiple human acts (upload, login, message drafting, scheduling, captcha) so it was sent with human intervention | Court held device must be able to dial/send without human intervention; here human intervention was essential, so platform is not an ATDS under (B) |
| Whether the D.C. Circuit’s ACA Int’l vacatur of FCC's expansive "potential capacity" view controls | Plaintiff urged reliance on FCC’s broader potential‑capacity analysis | GoDaddy argued the D.C. Circuit’s ACA Int’l limits/departs from the FCC’s 2015 Order; court should assess how much enabling is required | Court followed ACA Int'l, rejected deference to FCC’s expansive potential‑capacity view, and declined to apply the 2015 Order’s broad test |
| Evidentiary relevance of plaintiff's expert report | Expert supports that platform is an autodialer | GoDaddy moved to exclude expert | Expert offered conclusions of law; court did not rely on the report and denied exclusion as moot after granting summary judgment |
Key Cases Cited
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (statutory ATDS capacity inquiry focuses on whether equipment "has the capacity...to store or produce telephone numbers...using a random or sequential number generator")
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacating FCC's expansive 2015 interpretation of "capacity" and directing focus on how much is needed to enable autodialing features)
- Luna v. Shac, LLC, 122 F.Supp.3d 936 (N.D. Cal. 2015) (web‑platform texts requiring multiple manual steps, including drafting and clicking "send," not an ATDS)
- Marks v. Crunch San Diego, LLC, 55 F.Supp.3d 1288 (S.D. Cal. 2014) (limited user access and required provider action to enable autodialing undermined ATDS finding)
- Gragg v. Orange Cab Co., Inc., 995 F.Supp.2d 1189 (W.D. Wash. 2014) (human intervention in transmission precluded ATDS characterization)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard: movant entitled to judgment where no genuine dispute of material fact)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (standard for determining genuine disputes of material fact at summary judgment)
Result: Summary judgment for GoDaddy — the 3Seventy Platform was not an ATDS because it lacked the requisite random/sequential number generation capacity and required essential human intervention to send the text; case dismissed with prejudice.