ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant’s Motion for Summary Judgment [DE 65] and Plaintiff’s Motion for Summary Judgment [DE 67]. The Court has reviewed the Motions, the parties’ responses and replies thereto, and the record in this ease, and is otherwise advised in the premises. For the reasons discussed herein, the Court will deny Defendant’s Motion for Summary Judgment and will grant in part and deny in part Plaintiffs Motion for Summary Judgment.
I. BACKGROUND
This suit arises from a series of unwanted text messages Defendant Voice Media Group, Inc. (“VMG”) allegedly sent to Plaintiff Christopher Legg in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. VMG operates alert services which transmit text-message advertisements to consumers’ cellular telephones throughout the United States. DE 1 ¶¶ 6,19, 32. VMG contracts with a third party, Phaz2, Inc. (“Phaz2”), to handle the details and logistics of sending the text messages. DE 65-1 ¶ 1; DE 65-3 at 1. Individuals wishing to subscribe to VMG’s alert services send a text-message request to a “short code” — a type of telephone number used by companies to communicate with large numbers of consumers — maintained by Phaz2. DE 65-5 ¶ 5. Phaz2’s systems then store the individuals’ telephone numbers in a subscriber database. Id. The alert services also allow individuals to unsubscribe by sending the terms “STOP ALL” or variations of “STOP” to the short code. See DE 52-2 ¶ 9.
When VMG decides to send a message to its subscribers, VMG employees draft the substance of the message. DE 65-1 ¶ 4. The employees then input the message, the desired time of sending, and the intended categories of recipients into a software interface that communicates with Phaz2’s systems. DE 65-2 ¶¶ 5-6. When Phaz2 receives the message, it arranges for the message to be transmitted to the cellular telephones of the designated subscribers at the appropriate time. See DE 65-1 ¶ 5.
Legg subscribed to VMG’s alert services in 2012 and early 2013. DE 1 ¶¶ 20-25. In July 2013, however, Legg sought to unsubscribe by following VMG’s instructions to send text messages containing variations of the terms “STOP” and “STOP ALL” to its short code. DE 1 ¶¶ 26-29. Nevertheless, VMG allegedly continued to send text messages to Legg. Id. ¶¶ 27-30. On the basis of the unwanted text messages, Legg commenced this action for violations of the TCPA on September 20,
II. LEGAL STANDARD
A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
After the movant has met its burden under Rule 56(a), the burden of production shifts, and the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
III. DISCUSSION
Legg brings his claims in this action under a provision of the TCPA which prohibits the use of an automatic telephone dialing system (“ATDS”) to call a cellular telephone without the recipient’s consent. The TCPA provides in pertinent part:
It shall be unlawful for any person within the United States ... to make any call ... using any [ATDS] ... to any telephone number assigned to a ... cellular telephone service....
47 U.S.C. § 227(b)(l)(A)(iii). A text message to a cellular telephone qualifies as a “call” within the meaning of the TCPA. Gager v. Dell Fin. Servs., LLC,
The parties’ Motions focus on two issues central to VMG’s liability: (1) whether VMG’s text messages were sent using an ATDS; and (2) whether VMG is liable for the text messages, even though the messages were sent using Phaz2’s — not VMG’s — systems. Legg also seeks judgment in his favor regarding VMG’s affirmative defenses based upon the TCPA’s established business relationship exemption, consent to receive the messages, and
A. Legg’s Motion for Summary Judgment [DE 67]
i. Legg Has Failed to Establish that VMG’s Text Messages Were Sent Using an ATDS
To succeed on his TCPA claims, Legg must establish that VMG’s text messages were sent using an ATDS. The definition of an ATDS, however, is the subject of disagreement among the courts. Legg thus seeks a determination that the FCC’s expansive view of what constitutes an ATDS should apply in this action, and that the systems used to send VMG’s messages fall within that definition. VMG counters that the FCC’s guidance on the definition of an ATDS is not applicable on the facts of this case, and moreover that Legg has provided no evidence that an ATDS was used. Although the Court will apply the FCC’s interpretation of what qualifies as an ATDS, the Court finds that questions of fact remain regarding whether VMG actually used such a system.
The text of the TCPA defines an ATDS as “equipment which has the capacity ... to store or produce telephone numbers to be called, using a random or sequential number generator[,] and ... to dial such numbers.” 47 U.S.C. § 227(a)(1). In 2003, however, the FCC expanded that definition when it addressed the question of “predictive dialers.” See In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. 14014 (FCC 2003) (“2003 FCC Order”). Predictive dialers are automated systems that call telephone numbers stored in pre-programmed lists or databases in a manner designed to maximize the efficiency of call centers. Id. at 14091. The FCC determined that predictive dial-ers fall within the definition of an ATDS, even though they may not “store or produce telephone numbers to be called, using a random or sequential number generator,” as set forth in the text of the TCPA. Id.
Reviewing the statutory text and legislative history of the TCPA, the FCC noted that Congress enacted the TCPA to deal with the increasing use of automated systems to place large volumes of calls. Id. at 14091-92. The FCC thus concluded that the defining characteristic of an ATDS is “the capacity to dial numbers without human intervention.” Id. at 14092. The FCC further reasoned that the TCPA’s definition of an ATDS as a system with the capacity to generate numbers to be called “randomly or sequentially” reflected the state of automatic dialing technology at the time of the TCPA’s passage, but that this requirement had become an anachronism given that the “teleservices industry has progressed to the point where using lists of numbers is far more cost effective” than generating numbers. Id. at 14092. Though a predictive dialer might not fit squarely within the TCPA’s statutory definition of an ATDS, the FCC found that it is the sort' of automated equipment Congress intended to address through the TCPA because it has the “capacity to dial numbers without human intervention.” Id. at 14092-93. Accordingly, the FCC determined that a predictive dialer is an ATDS. Id.
Legg suggests that the Court follow the guidance of the 2003 FCC Order to find that equipment can be an ATDS if it has the “capacity to dial numbers without hu
However, this evidence does not paint a complete picture of the process VMG and Phaz2 use to send the messages. Although Legg points to documents purportedly describing Phaz2’s systems, he has not provided evidence linking those systems to messages sent on VMG’s behalf. For example, the record is devoid of testimony by a representative of Phaz2 confirming that the documents Legg relies upon accurately reflect the capabilities of its systems, or that it even used those systems in delivering VMG’s messages. Further, though it is true that Phaz2 sends “scheduled broadcasts” to individuals in a subscriber database, Legg has not shown that these broadcasts are transmitted without human intervention. It may be possible, if improbable, that Phaz2 employed individuals to transmit each broadcast at the predetermined time. Similarly, a reference to VMG’s messages as “autod-ialed” is not dispositive of whether the messages were sent using an ATDS within the meaning of the TCPA, and without human intervention. Viewing Legg’s evidence as a whole, the Court is unable to find that “no reasonable jury could find for [VMG]” regarding the use. of an ATDS. See Rich,
ii. Legg Has Failed to Establish that VMG Is Liable for Calls Phaz2 Placed
Legg next seeks a determination that VMG is liable for unwanted text messages Phaz2 sent on VMG’s behalf. VMG does not dispute that agency principles may result in an advertiser’s liability under the TCPA for actions taken on its behalf by a vendor. DE 75 at 9. Instead, VMG argues that Legg failed to plead such vicarious liability in his Complaint, and cannot raise this theory of liability for the first time at the summary-judgment
First, the Court rejects VMG’s argument that Legg’s failure to raise vicarious liability in his Complaint precludes him from proceeding on a vicarious-liability theory now. Contrary to VMG’s assertions, Legg did give notice in his Complaint that he held VMG responsible for messages sent by its agents. Specifically, Legg defined his proposed class as comprising individuals who were sent unwanted text messages by VMG “or any party on behalf of [VMG].” DE 1. ¶34. The Court therefore finds that Legg gave VMG notice that he asserts vicarious liability in his initial pleading. See Imhoff Inv., LLC v. SamMichaels, Inc., No. 10-10996,
Having determined that Legg may proceed on a theory of vicarious liability, the Court nevertheless concludes that Legg has not established that VMG is vicariously liable for TCPA violations arising from messages sent by Phaz2. A court determining the existence of vicarious liability must first assess whether the principal had the necessary agency relationship with the direct wrongdoer to support such liability. See CFTC v. Gibraltar Monetary Corp.,
Here, Legg has provided evidence that VMG and Phaz2 enjoyed a business relationship whereby VMG sent messages to Phaz2, and Phaz2 transmitted those messages to VMG’s subscribers. See DE 67 at 11-12. This evidence, however — comprising a handful of e-mails, technical documents, and a contract — gives only a vague sense of the actual working relationship of the parties, and the allocation of duties and control. Further, the contract establishing the relationship between VMG and Phaz2 does not appear to provide VMG with substantial control over the details of Phaz2’s provision of text-messaging services. See DE 65-3 at 1. The contract also states that “Phaz2 is acting as an independent contractor” in the performance of its duties, and that “nothing [in the contract] shall be deemed to create an agency relationship between Phaz2 and [VMG].” Id. at 5/ While this contractual language is not dispositive of whether VMG in fact had sufficient control over Phaz2’s actions to render VMG vicariously liable, see Restatement (Third) of Agency
iii. Legg Is Entitled to Summary Judgment on Certain of VMG’s Affirmative Defenses
In his Motion, Legg also requests a determination that VMG’s affirmative defenses based upon the TCPA’s established business relationship exemption, consent, and due process are without merit, which VMG does not oppose. The Court will grant Legg’s Motion with respect to each of these defenses both because Legg appears correct as a legal matter, and because VMG’s failure to respond constitutes grounds for resolution of these points in Legg’s favor. See S.D. Fla. L.R. 7.1(c); Al Procurement, LLC v. Hendry Corp., No. 11-23582,
Legg first argues that the established business relationship exemption to the TCPA, which VMG raises as an affirmative defense (DE 44 at 7), applies only to calls made to land lines, and not to claims such as his for calls made to cellular telephones. DE 67 at 4-5 (citing Himes v. Client Servs. Inc., No. 12-321,
Legg also argues that VMG’s consent defense fails as a legal matter, because he premises his claims on text messages VMG sent after he revoked his consent. Section 227(b)(1)(A)(iii) only prohibits calls made without the recipient’s “prior express consent.” A recipient may revoke prior consent, however, and subsequent calls can support a TCPA claim. See Osorio v. State Farm Bank, F.S.B.,
Finally, Legg requests a determination that the damages he seeks pursuant to the TCPA do not violate due process. This request appears to relate to VMG’s vaguely pled seventh affirmative defense, which states in its entirety: “To the extent
B. VMG’s Motion for Summary Judgment [DE 65]
i. VMG Has Failed to Establish that It Is Not Vicariously Liable for Phaz2’s Actions
VMG argues that it is entitled to summary judgment on Legg’s claims because VMG itself never sent text messages directly to its consumers. Instead, VMG contends that it submitted the content of the messages to Phaz2, and Phaz2 sent the messages. VMG further maintains that it cannot be held vicariously liable for Phaz2’s actions. However, Legg has created an issue of fact regarding whether VMG is vicariously liable for Phaz2’s conduct, thus summary judgment on this point is inappropriate.
Without disputing that vicarious liability may support a TCPA claim, VMG first contends that Legg cannot proceed on a theory of vicarious liability at the summary-judgment stage because he failed to give notice of the theory in his Complaint. Id. at 1-2. As the Court has already determined in relation to Legg’s Motion for Summary Judgment, however, Legg did raise vicarious liability in his Complaint. See supra part III.A.Ü. VMG therefore is not entitled to summary judgment arising from Legg’s assertion of vicarious liability for the first time at the summary-judgment stage.
VMG also argues that Legg has provided insufficient evidence of an agency relationship to support vicarious liability. VMG contends that Legg can cite only to the contract between VMG and Phaz2 to illustrate the relationship between the two companies, and that the contract makes clear that Phaz2 is an independent contractor providing services to VMG. DE 82 at 3. VMG concludes that a principal is not vicariously liable for the actions of an independent contractor, thus any action taken by Phaz2 cannot support VMG’s liability.
As the Court has already determined, however, the language of VMG’s contract with Phaz2 is not dispositive of the issue of vicarious liability. A review of the other evidence in the record shows that VMG’s
ii. VMG Has Failed to Establish that It Is Not Directly Liable for Sending the Text Messages
VMG also contends that, because all of the text messages sent to its subscribers were routed through Phaz2’s equipment, the Court should grant summary judgment on the issue of whether VMG is liable for having itself used an ATDS to send the messages. The Court rejects VMG’s argument because the parties’ evidence does not paint a full picture of the process by which VMG’s messages ultimately find their way to consumers. VMG uses a software interface to transmit its text-message broadcast instructions to Phaz2’s systems. See DE 65-1 ¶ 4. What happens next, however, is something of a mystery. VMG implies that Phaz2 has some role in processing and manipulating the text messages once VMG’s involvement has concluded, presumably resulting in Phaz2, and not VMG, using its equipment to send the text messages. See DE 65-1 ¶¶ 5-6; DE 65-2 ¶¶ 4, 7. If the interface VMG uses is sufficiently integrated with Phaz2’s systems, however — for example, so that VMG’s submission of a scheduled broadcast automatically triggers the transmission of messages from Phaz2’s equipment — it may be that VMG is the entity actually “using” the systems to place calls to subscribers, notwithstanding that Phaz2 may own the software or equipment that executes VMG’s instructions. See Lardner,
iii. VMG Has Failed to Establish the Absence of an ATDS
Finally, VMG argues that Legg’s claims fail because the record is devoid of evi
IV. CONCLUSION
Having reviewed the parties’ crossing Motions for Summary Judgment, the Court determines that factual issues preclude summary judgment on the two core issues of the parties’ papers: (1) whether an ATDS was used to send VMG’s text messages; and (2) whether VMG is liable for text messages sent via Phaz2’s systems. Nevertheless, Legg has also sought summary judgment on the merits of VMG’s established business relationship, consent, and due process defenses, to which VMG has failed to respond. Accordingly, the Court will grant summary judgment in Legg’s favor only on those defenses. It is thereupon
ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Summary Judgment [DE 65] is DENIED.
2. Plaintiffs Motion for Summary Judgment [DE 67] is GRANTED in part and DENIED in part. The Motion is GRANTED to the extent it seeks an adjudication in Legg’s favor on VMG’s affirmative defenses based upon the established business relationship exemption to TCPA liability, prior express consent, and due process concerns. The Motion is DENIED in all other respects.
Notes
. Legg commenced this suit as a class action, however the Court denied class certification on May 5, 2014. See DE 93.
. The Court observes that some decisions relying upon the 2003 FCC Order, such as Hickey, have used the phrase "predictive dialer” as something of a term of art referring to any device with the capacity to dial numbers from a database without human intervention. See
. In VMG’s Motion for Summary Judgment, VMG also argues that the Court should reject the FCC's determinations in the 2003 FCC Order as unreasonable even if they apply to the facts of this case. DE 65 at 8-9. There is substantial disagreement regarding the deference federal district courts owe the FCC's orders interpreting the TCPA. See Lardner, 17
. The Court notes that it has excluded the testimony of Legg’s expert, Randall Snyder, on this point, and will not consider his opinions or testimony in arriving at its conclusions with regard to the parties’ Motions for Summary Judgment. See DE 91 at 8-11.
. The Court’s ruling on VMG’s due process defense is without prejudice to arguments by VMG as to the constitutionality of any eventual damages award. See Pasco,
. VMG contends in its Reply that Legg has abandoned any argument that VMG itself used an ATDS to make calls, because Legg did not address the issue in his Response to VMG’s Motion. DE 82 at 4-5. VMG’s contention is meritless because Legg did address this issue in his Response, arguing that VMG itself uses Phaz2’s software to send its text messages. DE 74 at 9-11.
. In his Opposition to VMG's Motion, Legg seeks to exclude the testimony of two of VMG’s witnesses, Stacy Volhein and Sandra Holmes, as it relates to the capabilities of VMG’s and Phaz2’s systems and whether the systems fall within the definition of an ATDS. DE 74 at 6 & n. 8. Even taking account of these witnesses’ testimony, however, the Court finds that VMG has not demonstrated its entitlement to summary judgment on the issue of whether an ATDS was used.