JAMES I. COHN, District Judge.
This suit arises from a series of unwanted text messages Defendant Voice Media Group, Inc. ("VMG") allegedly sent to Plaintiff Christopher Legg in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. VMG operates alert services which transmit text-message advertisements to consumers' cellular telephones throughout the United States. DE 1 ¶¶ 6, 19, 32. VMG contracts with a third party, Phaz2, Inc. ("Phaz2"), to handle the details and logistics of sending the text messages. DE 65-1 ¶ 1; DE 65-3 at 1. Individuals wishing to subscribe to VMG's alert services send a text-message request to a "short code" — a type of telephone number used by companies to communicate with large numbers of consumers — maintained by Phaz2. DE 65-5 ¶ 5. Phaz2's systems then store the individuals' telephone numbers in a subscriber database. Id. The alert services also allow individuals to unsubscribe by sending the terms "STOP ALL" or variations of "STOP" to the short code. See DE 52-2 ¶ 9.
When VMG decides to send a message to its subscribers, VMG employees draft the substance of the message. DE 65-1 ¶ 4. The employees then input the message, the desired time of sending, and the intended categories of recipients into a software interface that communicates with Phaz2's systems. DE 65-2 ¶¶ 5-6. When Phaz2 receives the message, it arranges for the message to be transmitted to the cellular telephones of the designated subscribers at the appropriate time. See DE 65-1 ¶ 5.
Legg subscribed to VMG's alert services in 2012 and early 2013. DE 1 ¶¶ 20-25. In July 2013, however, Legg sought to unsubscribe by following VMG's instructions to send text messages containing variations of the terms "STOP" and "STOP ALL" to its short code. DE 1 ¶¶ 26-29. Nevertheless, VMG allegedly continued to send text messages to Legg. Id. ¶¶ 27-30. On the basis of the unwanted text messages, Legg commenced this action for violations of the TCPA on September 20,
A district court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party bears the burden of proof on an issue at trial, it must show that the facts are such that "no reasonable jury could find for the nonmoving party." Rich v. Fla. Dep't of Corr., 716 F.3d 525, 530 (11th Cir.2013) (internal quotation marks omitted).
After the movant has met its burden under Rule 56(a), the burden of production shifts, and the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As Rule 56 explains, "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ... the court may ... grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(3). Therefore, the non-moving party "may not rest upon the mere allegations or denials in its pleadings" but instead must present "specific facts showing that there is a genuine issue for trial." Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir.1990). In deciding a summary-judgment motion, the Court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Davis v. Williams, 451 F.3d 759, 763 (11th Cir.2006).
Legg brings his claims in this action under a provision of the TCPA which prohibits the use of an automatic telephone dialing system ("ATDS") to call a cellular telephone without the recipient's consent. The TCPA provides in pertinent part:
47 U.S.C. § 227(b)(1)(A)(iii). A text message to a cellular telephone qualifies as a "call" within the meaning of the TCPA. Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 269 n. 2 (3d Cir.2013). Legg thus alleges that VMG violated the TCPA when it sent him text messages after he expressed a desire to unsubscribe from its alert services.
The parties' Motions focus on two issues central to VMG's liability: (1) whether VMG's text messages were sent using an ATDS; and (2) whether VMG is liable for the text messages, even though the messages were sent using Phaz2's — not VMG's — systems. Legg also seeks judgment in his favor regarding VMG's affirmative defenses based upon the TCPA's established business relationship exemption, consent to receive the messages, and
To succeed on his TCPA claims, Legg must establish that VMG's text messages were sent using an ATDS. The definition of an ATDS, however, is the subject of disagreement among the courts. Legg thus seeks a determination that the FCC's expansive view of what constitutes an ATDS should apply in this action, and that the systems used to send VMG's messages fall within that definition. VMG counters that the FCC's guidance on the definition of an ATDS is not applicable on the facts of this case, and moreover that Legg has provided no evidence that an ATDS was used. Although the Court will apply the FCC's interpretation of what qualifies as an ATDS, the Court finds that questions of fact remain regarding whether VMG actually used such a system.
The text of the TCPA defines an ATDS as "equipment which has the capacity ... to store or produce telephone numbers to be called, using a random or sequential number generator[,] and ... to dial such numbers." 47 U.S.C. § 227(a)(1). In 2003, however, the FCC expanded that definition when it addressed the question of "predictive dialers." See In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. 14014 (FCC 2003) ("2003 FCC Order"). Predictive dialers are automated systems that call telephone numbers stored in pre-programmed lists or databases in a manner designed to maximize the efficiency of call centers. Id. at 14091. The FCC determined that predictive dialers fall within the definition of an ATDS, even though they may not "store or produce telephone numbers to be called, using a random or sequential number generator," as set forth in the text of the TCPA. Id.
Reviewing the statutory text and legislative history of the TCPA, the FCC noted that Congress enacted the TCPA to deal with the increasing use of automated systems to place large volumes of calls. Id. at 14091-92. The FCC thus concluded that the defining characteristic of an ATDS is "the capacity to dial numbers without human intervention." Id. at 14092. The FCC further reasoned that the TCPA's definition of an ATDS as a system with the capacity to generate numbers to be called "randomly or sequentially" reflected the state of automatic dialing technology at the time of the TCPA's passage, but that this requirement had become an anachronism given that the "teleservices industry has progressed to the point where using lists of numbers is far more cost effective" than generating numbers. Id. at 14092. Though a predictive dialer might not fit squarely within the TCPA's statutory definition of an ATDS, the FCC found that it is the sort of automated equipment Congress intended to address through the TCPA because it has the "capacity to dial numbers without human intervention." Id. at 14092-93. Accordingly, the FCC determined that a predictive dialer is an ATDS. Id.
Legg suggests that the Court follow the guidance of the 2003 FCC Order to find that equipment can be an ATDS if it has the "capacity to dial numbers without human
However, this evidence does not paint a complete picture of the process VMG and Phaz2 use to send the messages. Although Legg points to documents purportedly describing Phaz2's systems, he has not provided evidence linking those systems to messages sent on VMG's behalf. For example, the record is devoid of testimony by a representative of Phaz2 confirming that the documents Legg relies upon accurately reflect the capabilities of its systems, or that it even used those systems in delivering VMG's messages. Further, though it is true that Phaz2 sends "scheduled broadcasts" to individuals in a subscriber database, Legg has not shown that these broadcasts are transmitted without human intervention. It may be possible, if improbable, that Phaz2 employed individuals to transmit each broadcast at the predetermined time. Similarly, a reference to VMG's messages as "autodialed" is not dispositive of whether the messages were sent using an ATDS within the meaning of the TCPA, and without human intervention. Viewing Legg's evidence as a whole, the Court is unable to find that "no reasonable jury could find for [VMG]" regarding the use of an ATDS. See Rich, 716 F.3d at 530. Accordingly, Legg has failed to demonstrate his entitlement to a determination at the summary-judgment stage that the system used to send VMG's messages was an ATDS.
Legg next seeks a determination that VMG is liable for unwanted text messages Phaz2 sent on VMG's behalf. VMG does not dispute that agency principles may result in an advertiser's liability under the TCPA for actions taken on its behalf by a vendor. DE 75 at 9. Instead, VMG argues that Legg failed to plead such vicarious liability in his Complaint, and cannot raise this theory of liability for the first time at the summary-judgment
First, the Court rejects VMG's argument that Legg's failure to raise vicarious liability in his Complaint precludes him from proceeding on a vicarious-liability theory now. Contrary to VMG's assertions, Legg did give notice in his Complaint that he held VMG responsible for messages sent by its agents. Specifically, Legg defined his proposed class as comprising individuals who were sent unwanted text messages by VMG "or any party on behalf of [VMG]." DE 1 ¶ 34. The Court therefore finds that Legg gave VMG notice that he asserts vicarious liability in his initial pleading. See Imhoff Inv., LLC v. SamMichaels, Inc., No. 10-10996, 2014 WL 172234 at *4-5, 2014 U.S. Dist. LEXIS 4965 at *12-13 (E.D.Mich. Jan. 15, 2014) (rejecting contention that vicarious liability was first raised at summary-judgment stage where plaintiff defined class as including recipients of calls made "on behalf of" defendant). Moreover, the record teems with references by both parties to Phaz2's relevance to the action and VMG's reliance upon Phaz2 to operate its alert services. VMG cannot credibly argue that it has suffered unfair surprise or prejudice as a result of Legg's assertion that messages from Phaz2 form the basis for VMG's liability.
Having determined that Legg may proceed on a theory of vicarious liability, the Court nevertheless concludes that Legg has not established that VMG is vicariously liable for TCPA violations arising from messages sent by Phaz2. A court determining the existence of vicarious liability must first assess whether the principal had the necessary agency relationship with the direct wrongdoer to support such liability. See CFTC v. Gibraltar Monetary Corp., 575 F.3d 1180, 1189 (11th Cir.2009) (per curiam). A court may find a sufficient agency relationship where the principal exercised substantial control over the agent's actions. Id. A principal's ratification of the agent's conduct, or representations that the agent acts with authority, may also create an agency relationship supporting vicarious liability. In re Dish Network, LLC, 28 FCC Rcd. 6574, 6586-87 (FCC 2013). The existence of this agency relationship is a question of fact, however, and summary judgment on vicarious liability is appropriate only in cases where evidence of the relationship is clear and unequivocal. Johnson v. Unique Vacations, Inc., 498 Fed.Appx. 892, 894 n. 3 (11th Cir.2012) (per curiam).
Here, Legg has provided evidence that VMG and Phaz2 enjoyed a business relationship whereby VMG sent messages to Phaz2, and Phaz2 transmitted those messages to VMG's subscribers. See DE 67 at 11-12. This evidence, however — comprising a handful of e-mails, technical documents, and a contract — gives only a vague sense of the actual working relationship of the parties, and the allocation of duties and control. Further, the contract establishing the relationship between VMG and Phaz2 does not appear to provide VMG with substantial control over the details of Phaz2's provision of text-messaging services. See DE 65-3 at 1. The contract also states that "Phaz2 is acting as an independent contractor" in the performance of its duties, and that "nothing [in the contract] shall be deemed to create an agency relationship between Phaz2 and [VMG]." Id. at 5. While this contractual language is not dispositive of whether VMG in fact had sufficient control over Phaz2's actions to render VMG vicariously liable, see Restatement (Third) of Agency
In his Motion, Legg also requests a determination that VMG's affirmative defenses based upon the TCPA's established business relationship exemption, consent, and due process are without merit, which VMG does not oppose. The Court will grant Legg's Motion with respect to each of these defenses both because Legg appears correct as a legal matter, and because VMG's failure to respond constitutes grounds for resolution of these points in Legg's favor. See S.D. Fla. L.R. 7.1(c); A1 Procurement, LLC v. Hendry Corp., No. 11-23582, 2012 WL 6214546 at *3, 2012 U.S. Dist. LEXIS 176624 at *8-9 (S.D.Fla. Dec. 12, 2012).
Legg first argues that the established business relationship exemption to the TCPA, which VMG raises as an affirmative defense (DE 44 at 7), applies only to calls made to land lines, and not to claims such as his for calls made to cellular telephones. DE 67 at 4-5 (citing Himes v. Client Servs. Inc., No. 12-321, 990 F.Supp.2d 59, 2014 WL 24258, 2014 U.S. Dist. LEXIS 125 (D.N.H. Jan. 2, 2014)). The Court agrees with Legg that the established business relationship exemption does not apply to Legg's claims under 47 U.S.C. § 227(b)(1)(A)(iii) for calls to his cellular telephone, and instead applies only to calls to land lines. See Gager, 727 F.3d at 273.
Legg also argues that VMG's consent defense fails as a legal matter, because he premises his claims on text messages VMG sent after he revoked his consent. Section 227(b)(1)(A)(iii) only prohibits calls made without the recipient's "prior express consent." A recipient may revoke prior consent, however, and subsequent calls can support a TCPA claim. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1252 (11th Cir.2014). A party may revoke consent to receive text messages by sending an "opt-out" text message to the calling party. Munro v. King Broad Co., No. 13-1308, 2013 U.S. Dist. LEXIS 168308 at *7-11 (W.D.Wash. Nov. 26, 2013); see also In re SoundBite Commc'ns, Inc., 27 FCC Rcd. 15391, 15394-98 (FCC 2012) (consumer consent to receive text messages after sending opt-out request is limited to message confirming that opt-out was effective). Here, Legg sent an opt-out message to VMG, requesting to stop receiving messages from VMG according to the procedures set forth in VMG's own messages. E.g., DE 67-9 ¶ 12. Because VMG does not contest that Legg properly attempted to unsubscribe from its alert services, and does not dispute that this was effective to revoke consent, Legg is entitled to a determination that messages he received subsequent to his requests to unsubscribe were sent without his consent.
Finally, Legg requests a determination that the damages he seeks pursuant to the TCPA do not violate due process. This request appears to relate to VMG's vaguely pled seventh affirmative defense, which states in its entirety: "To the extent
VMG argues that it is entitled to summary judgment on Legg's claims because VMG itself never sent text messages directly to its consumers. Instead, VMG contends that it submitted the content of the messages to Phaz2, and Phaz2 sent the messages. VMG further maintains that it cannot be held vicariously liable for Phaz2's actions. However, Legg has created an issue of fact regarding whether VMG is vicariously liable for Phaz2's conduct, thus summary judgment on this point is inappropriate.
Without disputing that vicarious liability may support a TCPA claim, VMG first contends that Legg cannot proceed on a theory of vicarious liability at the summary-judgment stage because he failed to give notice of the theory in his Complaint. Id. at 1-2. As the Court has already determined in relation to Legg's Motion for Summary Judgment, however, Legg did raise vicarious liability in his Complaint. See supra part III.A.ii. VMG therefore is not entitled to summary judgment arising from Legg's assertion of vicarious liability for the first time at the summary-judgment stage.
VMG also argues that Legg has provided insufficient evidence of an agency relationship to support vicarious liability. VMG contends that Legg can cite only to the contract between VMG and Phaz2 to illustrate the relationship between the two companies, and that the contract makes clear that Phaz2 is an independent contractor providing services to VMG. DE 82 at 3. VMG concludes that a principal is not vicariously liable for the actions of an independent contractor, thus any action taken by Phaz2 cannot support VMG's liability.
As the Court has already determined, however, the language of VMG's contract with Phaz2 is not dispositive of the issue of vicarious liability. A review of the other evidence in the record shows that VMG's
VMG also contends that, because all of the text messages sent to its subscribers were routed through Phaz2's equipment, the Court should grant summary judgment on the issue of whether VMG is liable for having itself used an ATDS to send the messages. The Court rejects VMG's argument because the parties' evidence does not paint a full picture of the process by which VMG's messages ultimately find their way to consumers. VMG uses a software interface to transmit its text-message broadcast instructions to Phaz2's systems. See DE 65-1 ¶ 4. What happens next, however, is something of a mystery. VMG implies that Phaz2 has some role in processing and manipulating the text messages once VMG's involvement has concluded, presumably resulting in Phaz2, and not VMG, using its equipment to send the text messages. See DE 65-1 ¶¶ 5-6; DE 65-2 ¶¶ 4, 7. If the interface VMG uses is sufficiently integrated with Phaz2's systems, however — for example, so that VMG's submission of a scheduled broadcast automatically triggers the transmission of messages from Phaz2's equipment — it may be that VMG is the entity actually "using" the systems to place calls to subscribers, notwithstanding that Phaz2 may own the software or equipment that executes VMG's instructions. See Lardner, 17 F.Supp.3d at 1223-25, 2014 WL 1778960 at *6-7, 2014 U.S. Dist. LEXIS 64205 at *17-19 (finding defendant liable under TCPA for calls made using third-party ATDS where defendant's employees operated ATDS through software interface). Accordingly, VMG has not shown that it is entitled to summary judgment on the issue of whether it is liable for itself using an ATDS to send its text messages.
Finally, VMG argues that Legg's claims fail because the record is devoid of evidence
Having reviewed the parties' crossing Motions for Summary Judgment, the Court determines that factual issues preclude summary judgment on the two core issues of the parties' papers: (1) whether an ATDS was used to send VMG's text messages; and (2) whether VMG is liable for text messages sent via Phaz2's systems. Nevertheless, Legg has also sought summary judgment on the merits of VMG's established business relationship, consent, and due process defenses, to which VMG has failed to respond. Accordingly, the Court will grant summary judgment in Legg's favor only on those defenses. It is thereupon
