On June 1, 2015 the United States District Court for the Northern District of California granted AOL’s motion to dismiss a case seeking class action status for alleged TCPA violations based on text messages sent by AOL’s Instant Messenger service (“AIM”), and confirmation text messages sent from AOL to individuals who request not to receive future text messages from AIM. The case is Derby v. AOL, Inc., case number 15-cv-00452-RMW.
The first issue the court addressed is whether AIM is an ATDS under federal law. AIM allows its users to send text messages to cellular telephone numbers. In order to do so, an AIM user must input the intended recipient’s phone number, compose a message, and then request the message be sent. The plaintiff in this case argued that the court should distinguish between “conduct that triggers dialing” of a mobile phone number, and “the actual act of dialing” that number. The court rejected this argument and found that extensive human intervention is required to send text messages through AIM, and the system therefore did not constitute an ATDS. The court also went on to find that the TCPA “should not be construed to punish the consumer-friendly practice of confirming requests to block future unwanted texts.”
Had the court ruled for the plaintiff, and found a distinction between conduct that triggers dialing of a mobile phone number, and the actual dialing of that number, it could have had far reaching, negative consequences. Take speed dialing for example, you push a number on your phone that triggers the phone to dial the number. Under plaintiff’s interpretation of an ATDS, you apparently wouldn’t be able to speed dial a cell phone without violating the TCPA. This is one more example of why it is crucial for the industry to push back against over reaching plaintiffs.