Antitrust Law Daily Wrap Up, PRIVACY—D. Minn.: TCPA claims against Delta for sending unsolicited work request texts proceed, (Aug 6, 2015)

By Michael Menzhuber, J.D., LL.M.

An individual, who received repeated unsolicited work request text messages from Delta Air Lines, Inc. plausibly stated that sending the texts violated the Telephone Consumer Protection Act (TCPA), according to the federal district court in Minneapolis. The court further determined that the texts invaded the individual’s privacy (Rouse v. Delta Air Lines, Inc., August 4, 2015, Magnuson, P.).

Background. Shortly after receiving a text message from Delta asking whether he was interested in overtime hours for Delta mechanics, Kevin Rouse, who was not a mechanic, received six more text messages to the same effect. Rouse responded to a text message and asked Delta to stop sending him text messages. Delta replied that Rouse had provided his cell phone number for such text messages and continued sending him similar messages. On two separate occasions, Rouse responded to the text messages and had a text message “conversation” with two different individuals at Delta.

The text messaging did not stop until Rouse filed a lawsuit. The complaint in his lawsuit claimed that sending the unsolicited text messages: (1) violated the TCPA; and (2) was an invasion of his privacy, specifically an intrusion into his seclusion. Delta motioned to dismiss the complaint or, in the alternative, for summary judgment. The court determined that summary disposition was not appropriate, given the procedural posture of the case and the substantial disputes between the parties.

TCPA. Delta argued that, because Rouse could respond to the messages and in two cases received responses from Delta in return, he “in effect” conceded that there was “human intervention” in sending of the text messages. This, according to Delta, took Rouse’s claim outside the TCPA’s protections.

While the TCPA prohibits the use of an automatic telephone dialing system (ATDS) from calling or messaging an individual’s cellular phone without express permission, there is no dispute that the TCPA applies even to dialing/messaging systems that are not random-number generators, the court noted. Consequently, the TCPA would apply even if the numbers called or messaged came from a list of customers or employees.

Delta argued that the Federal Communications Commission (FCC) has excluded an autodialer that requires human intervention from the TCPA’s coverage. However, Delta conceded that the FCC has never focused on the “human intervention” piece of its definition of an autodialer as “equipment that has the capacity to dial numbers without human intervention.”

Delta also cited several cases that it contended found similar allegations implausible because the TCPA claims acknowledged human intervention. The court determined that none of the cases were on point because: (1) they did not address the “human intervention” aspect of the TCPA in a way that illuminated the instant dispute; and (2) they were not similar to the allegations in the present case.

The court determined that Rouse plausibly alleged that Delta used an autodialer to access phone numbers of its mechanics and to send text messages because he alleged that: (1) the text messages were generic in nature, not addressed to him specifically but to all Delta mechanics; (2) he received more than 60 such messages in a short period of time; (3) he requested the messages to stop; and (4) the messages did not stop.

Intrusion on seclusion. Delta argued that Rouse could not establish an actionable claim for intrusion on seclusion because he could not establish that the intrusion was highly offensive to a reasonable person. The court, however, determined that, at this stage of the proceedings, this argument was premature. It found that Rouse plausibly established that the large number of text messages he received in a short period of time caused him “frustration, anxiety, emotional distress, and mental anguish and suffering.” The court concluded that a reasonable person could find that the large number of text messages sent over the course of a few months amounted to “a course of hounding.”

The case is No. 15-1642 (PAM/JSM).

Attorneys: Thomas J. Lyons (Lyons Law Firm, PA) for Kevin W. Rouse. Nathan Lewis Garroway (Dentons US LLP) and Timothy R. Schupp (Gaskins Bennett Birrell Schupp, LLP) for Delta Air Lines, Inc.

Companies: Delta Air Lines, Inc.

Cases: ConsumerProtection Privacy MinnesotaNews