Antitrust Law Daily Wrap Up, PRIVACY—W.D. Wash.: TCPA claim against taxicab service for text message fails, (Feb 11, 2014)

By Linda O’Brien, J.D., LL.M.

In a class action suit against a taxicab company and developer of a taxi dispatch computer program for sending text message notifications to customers with taxi dispatch confirmations, a consumer failed to state a claim of a violation of the Telephone Consumer Protection Act (TCPA), the federal district court in Seattle has held (Gragg v. Orange Cab Company, Inc., February 7, 2014, Lasnik, R.). Thus, the court granted the defendants’ motion for partial summary judgment.

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. When a customer requests taxi service, the Orange Cab dispatcher who answers the telephone obtains the customer’s name, telephone number, and requested pick up and drop off locations. The customer’s telephone number may be provided directly or captured using caller identification (Caller ID). The dispatcher manually enters the information into the dispatch terminal and the information is then relayed both to the TaxiMagic program and the driver closest to the customer’s requested pick up location. When the driver accepts the information on his or her mobile data terminal, TaxiMagic composes a notification to the customer’s telephone number with the taxi number, distance from the cab dispatch location to the customer, and an invitation to download the TaxiMagic application.

Torrey Gragg called Orange Cab and requested a taxi in February 2012. He did not provide his telephone number to the dispatcher which was instead captured using Caller ID. The dispatcher created his request by manually inputting the information and transmitted 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). The defendants moved for partial summary judgment on the plaintiff’s TCPA claim.

The court found 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. 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 TaxiMagic program lacked the capacity to store or produce telephone numbers to be called using a random or sequential number generator. The telephone numbers used by the program are either provided directly by the customers or captured by Caller ID and then inputted by the dispatcher. The plaintiff submitted no evidence that the TaxiMagic program can autonomously generate random or sequential numbers to be dialed as required by the statutory definition of an ATDS or that TaxiMagic can be programmed to generate telephone numbers in that fashion.

Additionally, the TaxiMagic program was not a predictive dialer. In order to send the text dispatch notification to the customer, human intervention is essential since the dispatcher must manually input the information into the program and the information must be accepted by the driver. Thus, the plaintiff did not raise a genuine issue of material fact that the TaxiMagic program was an ATDS.

The case is No. C12-0576RSL.

Attorneys: Albert H. Kirby (Kirby Law Group) 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.

Cases: Privacy ConsumerProtection WashingtonNews