Ramos v. Hopele
Defendant’s MSJ granted – Hopele allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile. The offending texts read:
Hopele obtained plaintiff’s number when she made a purchase and completed a warranty information card. The card did not contain a written consent to receive automated text messages.
The court, in adopting the Magistrate Judge’s opinion, agreed that the EZ-texting program used by Hopele did not constitute an ATDS. The court found that the sequence of events necessary to send a text constituted a sufficient level of human intervention to negate any ATDS determination. These steps included:
• Creating a list of customer phone numbers in excel (based on various criteria, such as the date of purchase, amount spent, and the customer’s address)
• Removing any landline phone numbers (incapable of receiving a text message)
• Uploading the excel spreadsheet onto the EZ-texting website
• Drafting a message to be sent
• Programming the date and time of message delivery
• Assigning phones numbers to the message
• Hitting send
Plaintiff claimed (in part) the system had the ‘capacity’ to generate random numbers, since the Rand() function in excel could generate such numbers. The court declined to embrace this reasoning finding (i) plaintiff had not tested this function, and (ii) the decision in ACA v. FCC (D. D.C.; 15-1211) clarified the statutory definition of an automatic telephone dialing system did not include dialing from an externally supplied set of numbers (including numbers in an excel spreadsheet).
[S.D. FL; 0:17-cv-62100]
jbho: A novel capacity argument. I had to try it out myself. It’s actually pretty easy.
Couple this with Google Voice, and sure enough, every PC on the planet is an ATDS.
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