Happy Monday! Queenie back.
So I am on my way to Vegas to speak at Medicarians—literally at the airport—and wouldn’t you know it, a cool Vegas story just showed up for me to blog about. Fun stuff.
Turns out a Vegas hotel just landed a real pirate’s bounty on a motion to dismiss. But taking a closer look at the opinion suggests that the Court may not have tracked the Facebook decision properly (even though the end result was undoubtedly the correct one.) Still it’s a great Vegas-themed vehicle to study the finer points of the Facebook ruling so let’s DIG in.
As the Czar pointed out on his stellar article entitled “Vanishing Point” last month, the Eighth Circuit Court of Appeals recently held that a system does not “produce” numbers when it presents them for dialing. “Produce” means “generate” in the TCPA, and that’s fine. But it is also largely irrelevant to the battle over the meaning of ATDS.
The real battle post-Facebook continues to be what it means to “store” telephone numbers using an ROSNG. Footnote 7 of Facebook appears to say that “storage” using an ROSNG occurs any time an ROSNG is use to determine the sequence of numbers to be called—although some courts disagree in light of the fact that the cited amicus brief was describing technology that also “produced” numbers to be called using an ROSNG.
Still the holding of Facebook appears to be clear that a system that either “stores” or “produces” numbers using an ROSNG may constitute an ATDS.
But don’t tell that to the court in Jessica DeMesa, v. Treasure Island, LLC, No. 2:18-cv-02007-JAD-NJK (D. Nv. 06/01/2022).
In DeMesa the Plaintiff was texted by one of these new-fangled AI textbots everyone loves to play with. This one’s name is “Ivy” although other hotels have similar bots that go by “Rose” or “Betty” and Capital One famously has one named “Eno.”
According to Plaintiff, Ivy began texting her as soon as she arrived at the hotel and she didn’t like it one bit. She sued arguing that Ivy is both an ATDS and a prerecorded voice under the TCPA.
On the ATDS front, the Court swiftly dismissed the claim figuring that since the Plaintiff gave her number to the hotel Ivy had not “produced” it using an ROSNG. That finding is fine as far as it goes, of course, but it is only half of the analysis required by Facebook. The other half—whether the system “stores” numbers using an ROSNG—was not directly addressed. Instead, in the DeMesa court’s reasoning if a system does not randomly generate telephone numbers it is not an ATDS.
While that analysis is not, technically speaking, correct it probably doesn’t make a difference in this case anyway. As the Court correctly identified, the texts at issue were triggered by a real life event—the customer checking in. As the texts were sent in all likelihood, one-to-one fashion and based on a real life event they were likely not queued or batched in any meaningful way. So ROSNG usage to determine sequence is super unlikely.
Still the reasoning of cases like DeMesa may give callers a bit too much false hope—like when the Blackjack dealer has a six showing but unbeknownst to you the hole card is a five—Facebook simply does not hold that a system must randomly generate telephone numbers to trigger the TCPA. And if a defendant were to give DeMesa a light read and go no further they might do the TCPA equivalent of doubling down on a 9. Not smart.
Moving onto the long-shot “Artificial voice” component the Court makes quick work of this portion of the claim as well. As other courts have found, the definition of “voice” looks at the use of a human larynx—which Ivy simply lacks. The DeMesa court also pointed out that the Ninth Circuit continues to recognize the difference between “voice calls” and “text calls” meaning that Ivy simply lacks a voice for purposes of TCPA analysis. Snake eyes.
So at bottom, hotels are free to unleash their AI-powered text bots on hotel guests as soon as they provide their phone number. Unsurprisingly this is consistent with the Czar’s predictions—the guy really can see the future—that Courts would deem AI powered and triggered texts to be outside the TCPA post-Facebook. Indeed, the guy has had AI texts in his “green” category since the day after Facebook was decided. I previously would have called that a real gamble. Now I have to call it a winning bet.