Lead plaintiff, John Herrick, in the Telephone Consumer Protection Act (TCPA) class action lawsuit against GoDaddy.com LLC (GoDaddy.com) opposed an Arizona federal judge’s May 2018 decision to grant summary judgment in favor of GoDaddy.com. The court granted summary judgment on the grounds that the platform used to send the text messages did not qualify as an autodialer under the TCPA since the platform did not have the ability to generate the numbers it texted or to send text messages without human intervention. The court based its decision on the D.C. Circuit’s ruling in March 2018 in ACA International v. Federal Communications Commission (FCC), which narrowed a 2015 FCC order that defined an “automatic telephone dialing system” (or autodialer) to mean any device with the ‘capacity’ to place autodialed calls, even if it required additional software.

However, Herrick’s counsel argued that the court should look at its own precedent in Marks v. Crunch San Diego, which reached the opposite conclusion of the D.C. Circuit when it came to the validity of the FCC’s broad autodialer definition.  Herrick’s counsel now argues that the Mark decision compels reversal of the district court’s order granting summary judgment.

This has been one of the highest profile TCPA cases in the last year because of the almost 30-year old law’s definition of an autodialing system 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.” We will follow the court’s decision on this issue.