Burr & Forman

11.6.2018   |   ATDS, Blog Articles, Florida, Telephone Consumer Protection Act, Text Messages

Florida District Court Grants Summary Judgment Holding Plaintiff Failed To Prove ATDS Used To Send Texts

Gaza v. Auto Glass America, LLC, No. 8:17-cv-1811-T-27AEP, 2018 WL 5775915 (M.D. Fla. Nov. 2, 2018)

Plaintiff alleged that he received five text messages, asserting claims for violation of the TCPA. Defendant moved for summary judgment, contending Plaintiff failed to produce evidence establishing that an ATDS was used to send the text messages. The Court began its analysis, noting that to succeed on his claim, Plaintiff must establish Defendant sent the text messages using an ATDS and that “[t]he essential function of an ATDS is ‘the capacity to dial numbers without human intervention.’”

Defendant’s corporate representative testified that text messages sent on behalf of Defendant utilized manual entry, uploading and the eventual use of an online website, stating:

  • Defendant has work orders and invoices from prior customers containing their names, addresses, and cell phone numbers
  • One of Defendant’s representatives will go through these orders/invoices, take customers’ names and phone numbers and type them into an Excel spreadsheet
  • The representative then goes to the website of a company called “Textedly,” which Defendant uses to send electronic messages to former customers
  • The representative logs into the website with their password
  • The representative uploads the Excel spreadsheet file to the website
  • After the Excel spreadsheet is uploaded to the website, the website allows individual names to be selected for a text message to be sent on behalf of Defendant
  • Once the names are selected, Defendant can draft a text message to be sent, as well as select the date and time it should be sent
  • After this information is entered, Defendant “hit[s] send and hopefully they’re sent out on the date and time” chosen
  • Textedly is not authorized to send to send any messages at random
  • When asked how the text messages were delivered to Defendant’s customers, Prieto responded, “By text messages through the computer system. You have to ask Textedly how their inner workings are”

After considering this undisputed testimony, the Court granted summary judgment in Defendant’s favor, noting that “there is nothing in the record establishing that Defendant used an ATDS to send the text messages to Plaintiff. Indeed, the record is silent as to how the Textedly website/platform sends messages, and more importantly, how the messages were sent to Plaintiff. And, as [Defendant’s representative] testified, what happens after ‘send’ is pressed, i.e., ‘the inner workings,’ is a question for Textedly.”

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