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Free call deliverability test
2 Recent Cases Address ATDS Definition in Helpful Way

McKenna v. WhisperText

The defendant sent text messages to the plaintiff at the direction of third parties.  The text message in question asks the recipient to download an app onto their cell phone.  The app allows the person to click a button, which would then send text messages to people inviting them to download the same app.  The sender would have to manually input the phone numbers or direct which specific people to invite.  The plaintiff in this case received such a text and alleged that the defendant used an ATDS to send the text.  There was a dispute over the definition of an ATDS but the Court held that the facts here were insufficient to support a claim even if the broad “human intervention” standard applies.  The plaintiff never alleged that the text could be sent without human intervention, i.e. a human using the app directing the text to be sent by clicking a button.  The Court deemed these texts as having been made with human intervention.

Glauser v. GroupMe 

The plaintiff was added to a text message group by a third party.  The plaintiff then received two welcome texts from the defendant.  The Court held that in order to be an autodialer/ATDS, the equipment must have the “present capacity” to autodial.  The Court rejected the future/potential capacity standards and reiterated that the focus must be on the equipment’s “present capacity,” not how the equipment was actually used. The Court held that the requisite capacity that makes equipment an ATDS is the capacity to dial numbers without human intervention.  The Court cited previous FCC rulings on this issue in reaching its conclusion and held that the FCC has expanded the statutory definition of an ATDS, which requires the equipment to be capable of storing or producing telephone numbers to be called, using a random or sequential number generator.  Finally, the Court held that the system in this case did not have the capacity to send texts without human intervention.  An individual initiated these texts to be sent, even though the initiator did not draft the welcome texts.