RED ROBIN WINS BIG: Company Purveys Tasty Burgers AND Big ATDS Wins
Until now Red Robin was famous for their bottomless fry cups–with that savory seasoning salt. My kids love that place.
But now they might be famous for big ATDS victories.
While I continue to urge caution, there can be no doubt that the last couple of ATDS decisions have been real winners for the Defense bar.
Last week–was that just last week?–Queenie wrote about Treasure Island’s AI text bot being beyond the reach of the TCPA’s ATDS definition. There the Court held directly that only systems generating random PHONE NUMBERS qualify as an ATDS. As Queenie pointed out that is probably not what Facebook says but..a win is a win!
Well on Friday Red Robin scored a big victory that was much along the same line. In Mina v. Red Robin, 2022 WL 2105897 (D. Colo. June 10, 2022) a court similarly held that only systems that generate random numbers qualify as an ATDS–and I’m trying not to get swept up in the enthusiasm.
Here’s the thrust of the Mina court’s reasoning:
Applying Duguid, the plain language of the TCPA, and post-Duguid case law interpreting the TCPA, the court concludes that a device’s capacity to randomly or sequentially select, from a prepopulated list, which number to communicate with does not render it an autodialer under the TCPA. First, the court is respectfully not persuaded by Mr. Mina’s suggestion that the use of the term “number generator” in the TCPA does not refer to a telephone number generator, but instead refers to a not-yet-defined term of art in the software-engineering field concerning the random selection of items from a predetermined list.
That’s pretty sweet. Not going to pick at it. Just going to enjoy it.
And arguably the best part of the decision is that the court expressly refused to grant him a right to discovery. Sweet.
The Court also rejected Plaintiff’s argument that a text is a voice. Just like in the “IVY” case from last week, the text messages here were not sent using a sound. So they are not prerecorded voice messages. Plaintiff’s bar is presently 0-3 on that argument and I dont see it turning around anytime soon.
I should note that–like college basketball– TCPAWorld ATDS decisions are a game of runs. We have seen the pendulum swing back and forth before. Right now the defense-side ATDS rulings are stacking up. But don’t get too confident. I suspect a counterswing is in the works. It always seems to be.
The bottom line is–what it means to “store or produce” telephone numbers using an ROSNG remains an open question. While it is pretty clear that “producing” telephone numbers using an ROSNG requires the ROSNG to create/generate telephone numbers it is not clear what it means to store telephone numbers using an ROSNG. Readers are cautioned that any use of an ROSNG in connection with the storage or dialing (including sequence determination) of phone numbers risks converting a dialer into an ATDS. And, of course, none of this matters with respect to marketing calls in Florida or Oklahoma–much broader definition!
Podcast dropping soon…stay tuned!