Tehrani v. Joie de Vivre Hospitality, LLC

Background

Payam Tehrani sued DH Vitale Manager, LLC and SF Treat, LP under the Telephone Consumer Protection Act (TCPA). He alleged that he received three text messages from Hotel Vitale in September 2019 and that the messages were sent using an automatic telephone dialing system, commonly called an autodialer. He alleged that although he had stayed at Hotel Vitale years earlier and may have provided his telephone number during that stay, he had not consented to receiving autodialed text messages unrelated to that stay or to marketing Hotel Vitale.

The TCPA defines an autodialer as equipment with the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial those numbers. After the Supreme Court’s decision in Facebook, Inc. v. Duguid, the relevant definition was narrower than the interpretation previously adopted by the Ninth Circuit.

Proposed amended complaint

Tehrani asked for permission to file a third amended complaint. He alleged that the defendants used TrustYou software. According to his proposed allegations, the software could store customer contact information, generate sequential numbers to index contacts, arrange selected contacts in sequential order, and automatically text customers in that stored order.

Tehrani acknowledged that the alleged system did not have the capacity to generate random telephone numbers to call. He argued instead that the TCPA’s number generator need only generate a random or sequential index number that is assigned to preexisting telephone numbers in a customer database.

Court’s analysis

The court rejected that interpretation for several reasons.

First, the court read the phrase “number generator” in the statute as referring to telephone numbers, not index numbers. It relied on the statute’s references to telephone numbers and to the capacity to dial “such numbers.”

Second, the court concluded that the Supreme Court’s decision in Facebook implicitly rejected the theory that merely storing and dialing numbers from a prepared list is enough to create an autodialer. The court understood the relevant technology to involve a generator that actually creates telephone numbers, either for immediate dialing or for later dialing.

Third, the court considered the harms that Congress intended the TCPA to address, including autodialers’ ability to call random or sequential blocks of numbers, tie up emergency or business telephone lines, and reach cellular phones. The court found little connection between those harms and randomly ordering calls to a defined customer list.

Finally, the court concluded that footnote 7 of Facebook did not support Tehrani’s interpretation. The court read the “preproduced list” described in that footnote as a list of telephone numbers originally generated through random or sequential number-generation technology, rather than an existing customer database. The court also found persuasive the result reached by what it described as a clear majority of courts.

Disposition

The court denied Tehrani’s motion to amend. The order did not itself enter judgment for either side. Instead, because the court rejected Tehrani’s interpretation of an autodialer, it ordered the parties to meet and confer about how the litigation should proceed, including whether the defendants should seek judgment or whether the parties could stipulate to a judgment preserving Tehrani’s right to appeal. The parties were ordered to report on those efforts within a week of the order’s date. The order disposed of Docket No. 90.