Antitrust Law Daily Wrap Up, PRIVACY—SDFla: Factual Dispute Over Nightclub’s Use of Automatic Dialing System Precluded Summary Judgment on Consumer’s TCPA Claim, (Oct 22, 2012)

By Peter Reap, J.D., LLM

There was a genuine issue of material fact about whether Improv Miami, Inc., a comedy nightclub, used an automatic telephone dialing system (ATDS) to send a commercial text message to a consumer, Brandon M. Buslepp, who brought a proposed class action against the club for violations of the Telephone Consumer Protection Act (TCPA), the federal district court in Fort Lauderdale has decided (Buslepp v. Improv Miami, Inc., October 16, 2012, Cohn, J.). Thus, Buslepp’s motion for summary judgment on his individual claims was denied.

Buslepp received an unwanted commercial text message from Improv in December 2011. He alleged that Improv sent identical text messages to more than 41 other putative class members using an ATDS. He further asserts that each text message was sent from short code “82257,” which is used by Improv or its agents for marketing purposes. Buslepp has not yet moved for certification of the class, but has moved for summary judgment on his individual claim.

The TCPA provides in relevant part that:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States — (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice —

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

In order to establish a violation of the TCPA, a plaintiff must demonstrate that a defendant called or texted a number assigned to a cellular telephone service using an ATDS. The definition of an ATDS, as established by the Federal Communications Commission, includes equipment that has “the capacity to dial numbers without human intervention.”

Buslepp attempted to establish that Improv used an ATDS by pointing to the testimony of Improv’s Chief Operating Officer that Improv periodically sent out “mass [text] message[s]” to customers that had specifically signed up for such messages. Buslepp also noted that the officer stated that Improv generally sent its texts to anywhere from 20 to 50 customers at a time, and that Improv retrieved those numbers from its database of customers. Finally, Buslepp cited an unverified printout from the website of Pro Texting, Inc., the company which Improv had hired to run its text message marketing campaign. On the web page dated April 24, 2012, there was a statement that Pro Texting sends an average of 100,000 text messages per month to Improv’s customers.

However, Buslepp failed to offer any direct evidence that Improv used an ATDS in sending the subject text message to him in December 2011, the court determined. Buslepp seemed to acknowledge this deficit, by asserting that “Defendant can provide no evidence indicating that the text messages … were not send [sic] using an automatic telephone dialing system.” This assertion only confused the burden of proof, for it was Buslepp who was required to show, as an element of his claim, that Improv used an ATDS in December 2011.

Improv’s practices of storing customers’ phone numbers in a database, or sending out a text message to 20 or 50 customers, did not establish that it used an ATDS. Even the unverified claims made on Pro Texting’s website only showed that Improv was engaged in a mass texting campaign, and only as of April 2012. Such evidence shed no light on the precise means by which Improv sent a text to Buslepp in December 2011, according to the court.

The case is No. 12-60171-CIV-Cohn/Seltzer.

Scott David Owens (Scott D. Owens P.A.) for Brandon M. Buslepp. Joseph D. Garrity (Garrity-Weiss, P.A.) for Improv Miami, Inc.

Cases: ConsumerProtection Privacy FloridaNews