Pascal v. Arms

Background

Lawrence Pascal brought a putative class action against Concentra, Inc. under the Telephone Consumer Protection Act, 47 U.S.C. § 227. He alleged that Concentra sent him a text message without his consent on May 13, 2019. The message recruited physical therapists for positions and stated, “Text STOP to end.” According to Pascal, Concentra sent the same message at the same time to 3,596 phone numbers identified as belonging to physical therapists in California.

Concentra used Textedly, a messaging application, to conduct recruiting campaigns. Concentra uploaded lists of telephone numbers as comma-separated-value files, entered the message, selected a transmission time, and sent the message to the list. Textedly stored the numbers in a MySQL database. The database assigned sequential identification numbers to the telephone numbers based on when they were uploaded or manually entered. The undisputed evidence showed that Textedly did not change the order of the numbers, select which numbers would be messaged, or determine when messages would be sent. Pascal’s number was stored and messaged in the same sequential order in which it was entered.

The parties filed cross-motions for summary judgment on whether Concentra used an automatic telephone dialing system, or “autodialer,” as defined by the Act. The court did not reach the parties’ motions concerning the admissibility of expert testimony under the rule commonly called the Daubert standard.

Legal standard

Summary judgment is appropriate when there is no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. The court considered the undisputed evidence and determined whether either party was entitled to judgment without a trial.

The Act makes it unlawful, subject to specified exceptions, to make certain calls or text messages to a cellular telephone using an automatic telephone dialing system. The Act defines that system as equipment having the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial those numbers.

In Facebook, Inc. v. Duguid, the Supreme Court held that the random-or-sequential-number-generator requirement applies to the equipment’s storage or production of telephone numbers. The court also considered decisions from other district courts interpreting Duguid, including decisions holding that a system does not qualify merely because it stores a list of numbers and sends messages to those numbers automatically.

Analysis

Pascal did not dispute that the messages were not produced using a random or sequential number generator. He instead argued that Textedly stored the telephone numbers using a sequential number generator because the MySQL database assigned a sequential identification number to each entry.

The court rejected that argument. Relying on the reasoning of another decision from the district, the court concluded that the “numbers” covered by the Act are telephone numbers, not identification or index numbers assigned to telephone numbers in a database. Assigning sequential identification numbers to telephone numbers that had been uploaded or manually entered therefore did not establish that Textedly was an automatic telephone dialing system.

The court also held more broadly that, under Duguid, a platform that targets telephone numbers obtained in a non-random way is not an autodialer for purposes of the Act. Concentra selected the numbers based on the recipients’ geographic location and professional qualifications. Textedly did not randomly generate the telephone numbers, select the numbers, alter their order, or determine the timing of the messages.

The court rejected Pascal’s reliance on footnote 7 of Duguid. It concluded that the footnote’s reference to a “preproduced list” concerned technology in which the list itself was randomly generated, not a list collected or created through a non-random process and then assigned sequential database identifiers. The court therefore concluded, as a matter of law, that Concentra did not send the text message using an automatic telephone dialing system under Duguid and the Act.

Disposition

The court granted Concentra’s motion for summary judgment, denied Pascal’s motion for summary judgment, and dismissed the case with prejudice. The court did not reach the parties’ Daubert motions.