Antitrust Law Daily Wrap Up, PRIVACY—W.D. Wash.: No reconsideration of order dismissing consumer’s TCPA claim against taxicab service for text message, (Mar 3, 2014)

By Linda O’Brien, J.D., LL.M.

The federal district court in Seattle has denied reconsideration of its order dismissing a consumer’s Telephone Consumer Protection Act (TCPA) claims against a taxicab company and developer of a taxi dispatch computer program for sending text message notifications to customers with taxi dispatch confirmations (Gragg v. Orange Cab Company, Inc., February 28, 2014, Lasnik, R.).

Orange Cab Company utilizes TaxiMagic, a computer program developed by Ridecharge, Inc., which links Orange Cab’s dispatch terminals, taxicab drivers’ mobile data terminals, and a short message service (SMS) modem to send text message notifications to Orange Cab customers. Torrey Gragg called Orange Cab and requested a taxi in February 2012. He did not provide his telephone number to the dispatcher, but it was captured using Caller ID. The dispatcher created his request by manually inputting the information and transmitting the data to TaxiMagic and the nearest available driver. The driver accepted the information, and a notification was sent to Gragg. Gragg filed suit against Orange Cab and Ridecharge for sending the text message in violation of the TCPA and the Washington Commercial Electronic Mail Act (CEMA). On February 7, 2014, the court granted the defendants moved for partial summary judgment dismissing the plaintiff’s TCPA claim, finding that the defendants did not utilize an automatic telephone dialing system (ATDS) when sending the text message which was one of the required elements of a TCPA claim. Gragg sought reconsideration of the decision.

The court explained that a motion for reconsideration will be granted only upon a showing of manifest error in the prior ruling or new facts or legal authority that could not have been brought earlier with reasonable diligence.

Under the TCPA, it must be alleged that the defendant called a cellular telephone number using an ATDS without the recipient’s prior express consent. Equipment is an ATDS if it either (1) has the capacity to store or produce telephone numbers to be called using a random or sequential number generator to dial such numbers or (2) is a predictive dialer with the capacity to dial telephone numbers from a list without human intervention.

The court declined to grant reconsideration based on Gragg’s contention that, while the defendants’ program as currently configured did not meet the definition of an ATDS, TaxiMagic program could be programmed differently to store lists of telephone numbers and send messages without human intervention. Although the plaintiff was on notice that the functionality of the defendants’ system was a key issue, the plaintiff did not request an opportunity to conduct additional discovery.

Gragg’s new arguments regarding two subsequent district court decisions—suggesting the burden of summary judgment is met by showing that new software could be installed to allow a system to act as an ATDS—did not warrant reconsideration as nonbinding and unpersuasive. The TCPA defines an ATDS as equipment which has the capacity to do dial a list of stored telephone numbers without human intervention. In the court’s view, the definition does not include a system that has to be reprogrammed or have new software installed in order to perform the functions of an ATDS. Thus, the court declined to expand the definition to cover equipment that merely has the potential to store telephone numbers using a random or sequential number generator or to dial telephone numbers from a list without human intervention.

The defendants’ system, as currently configured, did not randomly or sequentially generate telephone numbers or could not send a text message with human input; therefore, it is incapable of performing as an ATDS. To hold that the defendants’ modem could develop the requisite capability if paired with different software would subject almost all sophisticated computers and cellphones to TCPA liability, which is not a result that Congress intended, the court concluded.

The case is No. C12-0576RSL.

Attorneys: Albert H. Kirby (Sound Justice Law Group PLLC) for Torrey Gragg. Kenneth E. Payson (Davis Wright Tremaine) for Orange Cab Company, Inc. and Ridecharge Inc. d/b/a TaxiMagic

Companies: Orange Cab Company, Inc.; Ridecharge, Inc. d/b/a TaxiMagic

Cases: Privacy ConsumerProtection WashingtonNews