TCPA Autodialing Class Suit Against AOL Dismissed

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By Jimmy H. Koo

Sept. 14 — AOL Inc. Sept. 11 dodged, for the second time, a Telephone Consumer Protection Act class action based on its AOL Instant Messenger service's capacity to send instant messages to mobile devices through text messages.

Dismissing the first amended class action complaint with prejudice, Judge Ronald M. Whyte of the U.S. District Court for the Northern District of California said that plaintiff Nicholas Derby's allegations failed to show that the AIM system “has the capacity to operate without human intervention and without user consent.”

According to Derby, he received three unsolicited text messages sent through AIM that were intended for someone named Sy, presumably from a user who mistyped a telephone number. Derby followed AOL's instructions for blocking such AIM text messages, and he immediately received a response from AOL confirming that the user had been blocked.

Alleging that he never signed up to receive texts through AIM and that he didn't provide AOL or any AOL users with consent to receive text messages, Derby filed the class action asserting violations of the TCPA, 47 U.S.C. § 227. Specifically, he alleged that AOL's practice of allowing AIM users to sent text messages without obtaining recipients' prior express consent violated the TCPA.

The court July 1 granted AOL's bid to dismiss the class action, saying that human intervention required to transmit instant messages via text precluded a finding that AOL used an automatic telephone dialing system and that sending a single text message to confirm a customer's opt out from future messages is a consumer-friendly practice.

Auto-Reply Feature Requires Human Intervention

In his amended complaint, Derby described two features of AIM that weren't mentioned in the original complaint: (1) the system sends automatic replies to users who try to send text messages to other users who have logged off; and (2) the system sends status text messages when users sign off or change their status. AOL moved to dismiss the amended complaint, arguing that the newly described features require human intervention, precluding a claim under the TCPA.

The court agreed with AOL.

The court said that the auto-reply feature requires three types of human intervention: (1) an individual must receive a text message from another AIM user; (2) the sender must have logged out of the system; and (3) the recipient must attempt to send a reply text message to the sender. Therefore, the court concluded, even if the plaintiff had received an auto-reply or status update, he would have consented to it, “precluding any violation of the TCPA.”

Further, the court disagreed with Derby's argument that in a July 2015 TCPA order, the Federal Communications Commission clarified that “any determination of whether a system is an ATDS should not be based only on the system’s present capacity, but rather on its potential capacity to function as an ATDS,” even if the system requires some modifications to actually do so. “Plaintiff's argument misses the mark,” it said.

The FCC's order doesn't suggest that a system that never operates without human intervention constitutes an ATDS. “To the contrary,” it reiterates that the basic functions of an ATDS are to “dial numbers without human intervention,” and to “dial thousands of numbers in a short period of time.” The amended complaint failed to show that the AIM system has the capacity to operate without human intervention and without user consent, the court concluded.

McGuire Law PC and Parisi & Havens LLP represented Derby. Covington & Burling LLP represented AOL.

To contact the reporter on this story: Jimmy H. Koo in Washington at

To contact the editor responsible for this story: Katie W. Johnson at

Full text of the court's opinion is available at