Recently, in Beal v. Outfield Brew House, LLC, 2022 U.S. App. LEXIS 7748 (8th Cir. Mar. 24, 2022) the 8th Circuit Court of Appeals upheld two district court decisions, each of which found that the marketing software called "Txt Live" used by the defendants to send promotional text messages to phone numbers randomly selected from a customer database is not an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA). The Court further ruled that equipment which stores numbers to be dialed at a later time is not an ATDS.
The Beal decision is a welcome one for companies that use predictive dialers or text messaging to communicate with their customers. It is one of the first appellate decisions to specifically uphold Facebook, Inc. v. Duguid in regard to text messaging platforms.
In the two cases at issue, plaintiffs Colby Beal and Zachary Smith alleged that they were sent promotional text messages using Txt Live in violation of the autodialer provision of the TCPA. While defendants manually entered contact information into the database, the Txt Live system randomly selected which numbers were being sent messages at any given time. The court analogized the process of selection to shuffling a deck of cards. But even with this element of randomness, the district courts found that it did not mean the same thing as randomly generating numbers to be called.
The Court of Appeals upheld the district courts' decisions, finding that randomly selecting a pre-loaded number is different than randomly generating or producing the number to be dialed. Ultimately, the Court concluded that the Txt Live system "is exactly the kind of equipment Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) excluded" from the definition of an ATDS. You can read the Facebook decision here. You can read a copy of the Beal opinion here.
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