The Seventh Circuit Court of Appeals has found that an automated text messaging system that dials from a stored list of numbers (but does not generate random or sequential telephone numbers) is not an Automatic Telephone Dialing System under the Telephone Consumer Protection Act.  Thus, no TCPA liability exists for these texts.  The case is Gadelhak v. AT&T.   

The Seventh Circuit’s analysis largely joins that of the Third, Eleventh, and DC Circuits.  The Ninth Circuit’s contrary decision in Marks v. Crunch is now a lone voice in the TCPA wilderness.

Like other courts, the Seventh Circuit noted that the plaintiff’s interpretation would create TCPA liability for essentially every text message sent, including from an iPhone.  At the end of the day, however, the statute’s nearly 30-year-old definition just does not include today’s predominant messaging technology.

Today, users can initiate hundreds of thousands of text messages very quickly.  And with statutory damages of $500-$1,500 per call or text, plaintiffs lawyers have aggressively pursued TCPA actions for many years.  Gadelhak, however, greatly limits the text messages subject to the TCPA.

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