1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

John Herrick, 

Plaintiff, 

v. 

GoDaddy.com LLC, 

Defendant. 

No. CV-16-00254-PHX-DJH

ORDER 

 This putative class action arises out of Defendant GoDaddy.com LLC’s 

(“GoDaddy”) alleged violation of the Telephone Consumer Protection Act, 47 U.S.C. 

§ 227, et seq. (“TCPA”), which prohibits the making of any call, including text messages, 

using an automatic telephone dialing system, to any telephone number assigned to a 

cellular telephone service, without the called party’s consent. 

 Pending before the Court are three fully briefed motions: (1) Plaintiff John 

Herrick’s (“Plaintiff”) Motion to Strike Defendant GoDaddy.com LLC’s Fourth 

Affirmative Defense of Consent as Legally Deficient (Doc. 74); (2) GoDaddy’s Motion 

to Exclude the Expert Report and Opinion of Jeffrey A. Hansen (Doc. 83); and 

(3) GoDaddy’s Motion for Summary Judgment, or in the Alternative, Motion to Stay 

(Doc. 79). 

 The Court finds that undisputed material facts show that GoDaddy did not use an 

automatic telephone dialing system (“ATDS”) to send the text in question. As such, 

Plaintiff cannot establish a claim under the Telephone Consumer Protection Act 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 1 of 18
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(“TCPA”). Summary judgment is thus granted in favor of GoDaddy. Because this 

finding is not predicated on the Federal Communications Commission’s (“FCC”) 

“potential capacity” guidance, GoDaddy’s request to stay these proceedings is denied. 

GoDaddy’s Motion to Exclude Plaintiff’s expert and Plaintiff’s Motion to Strike 

GoDaddy’s affirmative defense are denied as moot. 

I. BACKGROUND

 GoDaddy is a provider of web-based products and services, including domain 

name registration, website hosting, and other online business applications. (Doc. 79 at 1; 

First Amended Complaint (“FAC”), Doc. 27 at ¶ 25). In 2015, GoDaddy contracted with 

a web-based software application company called 3Seventy, Inc. (“3Seventy”) to send a 

one-text marketing campaign to nearly 100,000 of its customers using its 3Seventy 

Platform. (GoDaddy’s Statement of Undisputed Fact (“Def. SOF”), Doc. 80 ¶¶ 1, 2; 

Plaintiff’s Separate Controverting Statement of Undisputed Facts (“Pl. CSOF”), Doc. 91 

¶¶ 1, 2). 

 To conduct a text campaign using the 3Seventy Platform, a user must provide 

3Seventy with a list of customer phone numbers, something GoDaddy did via its file 

transfer protocol (“FTP”) site. (Def. SOF ¶ 7; Pl. CSOF ¶7).1

 3Seventy then uploads the 

list of numbers to its 3Seventy Platform. (Id.) A user like GoDaddy navigates to the 

website, manually logs onto 3Seventy’s Platform, and determines which numbers it 

would like to send a text message. (Def. SOF ¶¶ 8, 9; Pl. CSOF ¶¶ 8, 9). The user 

creates a message by manually typing in the desired content and selecting a time and date 

that the message will be sent. (Def. SOF ¶¶ 10, 11; Pl. CSOF ¶¶ 10, 11). As a final step, 

the user must type in what is referred to as a “captcha” – here, twelve alphanumeric 

values – to approve and authorize sending the message. (Def. SOF ¶ 12; Pl. CSOF ¶ 12). 

On the date and time specified by the user, the 3Seventy Platform sends the message to a 

Short Messaging Service (“SMS”) gateway aggregator that then transmits the message 

directly to the cell phone carrier. (Pl. Separate Statement of Additional Supporting Facts 

 1

 Information as to the operation of the 3Seventy Platform was provided by John Wright, the chief executive officer (“CEO”) and corporate representative from 3Seventy. 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 2 of 18
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(“Pl. SSOF ¶ 20). Plaintiff received the offending text on December 15, 2015. (FAC, 

Doc. 27 ¶ 28). The single text message offered Plaintiff a “promo code” to “save 40% on 

new products.” (Id.) Plaintiff alleges that GoDaddy sent the text to him without his 

consent. (Id.) 

 Plaintiff filed this action on January 28, 2016, asserting a single TCPA violation 

against GoDaddy. On August 9, 2016, Plaintiff filed an amended complaint. (FAC, 

Doc. 27). On February 1, 2017, GoDaddy answered the FAC, asserting, among others, 

the affirmative defense of consent. (Answer, Doc. 68). On March 3, 2017, Plaintiff 

moved to strike GoDaddy’s consent defense as legally deficient. (Doc. 74). Soon 

thereafter, the parties completed the phased discovery ordered by the Court. (Doc. 38). 

This limited discovery was ordered in part so that the parties could explore whether the 

3Seventy Platform was an ATDS under the TCPA. (Id.) 

 On March 31, 2017, GoDaddy filed for summary judgment on the sole grounds 

that the 3Seventy Platform is not an ATDS. GoDaddy alternatively asked that, if the 

Court was inclined to deny summary judgment in reliance on the FCC’s “potential 

capacity” guidance, the Court stay these proceedings pending the Ninth Circuit’s decision 

in Marks v. Crunch San Diego, No. 14-56834 (9th Cir. 2016). On March 31, 2017, 

GoDaddy also moved to exclude the report and opinions of Plaintiff’s expert Jeffrey A. 

Hansen. (Doc. 83). All of the pending motions are opposed and fully briefed.2

 The Court will first address GoDaddy’s motion for summary judgment and the 

accompanying motion to stay. 

II. DISCUSSION 

A. Legal Standards for Summary Judgment

 Fed. R. Civ. P. 56(a) allows for summary adjudication of a claim or defense when 

the parties’ discovery shows that “there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 

 2

 The parties have requested oral argument. The Court denies the request because the issues have been fully briefed and oral argument will not aid the Court's decision. See Fed. R. Civ. P. 78(b) (court may decide motions without oral hearings); LRCiv 7.2(f) (same). 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 3 of 18
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

477 U.S. 317, 323–24 (1986) (a principal purpose of summary judgment is “to isolate and 

dispose of factually unsupported claims”). Material facts are those that may affect the 

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury 

to return a verdict for the nonmoving party. See id.; Scott v. Harris, 550 U.S. 372, 380 

(2007) (“At the summary judgment stage, facts must be viewed in the light most 

favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts”). 

In cases where a reasonable juror could find for a nonmoving party, summary judgment 

is inappropriate. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 

2008) (“Summary judgment is inappropriate if reasonable jurors, drawing all inferences 

in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor”). 

 To establish the existence of a factual dispute, the opposing party need not 

establish a material issue of fact conclusively in its favor. It is sufficient that “the 

claimed factual dispute be shown to require a jury or judge to resolve the parties’ 

differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 

Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). But the nonmoving party cannot avoid 

summary judgment by relying solely on conclusory allegations that are unsupported by 

factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the 

opposition must go beyond the assertions and allegations of the pleadings and set forth 

specific facts by producing competent evidence that shows a genuine issue for trial. See 

Celotex Corp., 477 U.S. at 324. 

 The Court’s function at this stage is not to weigh the evidence and determine the 

truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 

249. Thus, while the evidence of the nonmovant is “to be believed, and all justifiable 

inferences are to be drawn in his favor,” if the evidence of the nonmoving party is merely 

colorable or is not significantly probative, summary judgment may be granted. See id. at 

249–50, 255. 

. . . . 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 4 of 18
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 With these principles in mind, the Court now turns to the parties’ arguments. 

B. “Automated Telephone Dialing Systems” Under the Telephone Consumer 

Protection Act 

 To establish a claim under the TCPA, a plaintiff must show the unauthorized call 

or text was sent from an “automatic telephone dialing system.” The crux of GoDaddy’s 

motion for summary judgment is that the 3Seventy Platform is not an “automatic 

telephone dialing system” as that term is defined by the TCPA and subsequent FCC 

regulations, and therefore, Plaintiff’s Complaint should be dismissed. 

 The TCPA was enacted to “protect the privacy interests of residential telephone 

subscribers by placing restrictions on unsolicited, automated telephone calls to the home 

and to facilitate interstate commerce by restricting certain uses of facsimile machines and 

automatic dialers.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 

2009) (quoting S. Rep. No. 102-178 at 1, 1991 U.S.C.C.A.N. 1968 (1991)). Under the 

TCPA, it is unlawful “to make any call [or send any text message]...using any automatic 

telephone dialing system...to any...cellular telephone service,” without the prior 

consent of the called party. 47 U.S.C. § 227(b)(1) (emphasis added). See also In the 

Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 

F.C.C.R. 14014, 14155 ¶ 165 (2003) (“2003 FCC Order”) (concluding that the statute’s 

restriction on “mak[ing] any call” encompasses the sending of text messages); Kristensen 

v. Credit Payment Servs., Inc., 879 F.3d 1010, 1013 (9th Cir. 2018). 

 The TCPA defines an ATDS, or what is often referred to as an autodialer, as 

“equipment which has the capacity (A) to store or produce telephone numbers to be 

called, using a random or sequential number generator; and (B) to dial such numbers.” 47 

U.S.C. § 227(a)(1). The Ninth Circuit has held that “[w]hen evaluating the issue of 

whether equipment is an ATDS, the statute’s clear language mandates that the focus must 

be on whether the equipment has the capacity ‘to store or produce telephone numbers to 

be called, using a random or sequential number generator.’” Satterfield, 569 F.3d at 951. 

As such, “a system need not actually store, produce, or call randomly or sequentially 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 5 of 18
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

generated telephone numbers, it need only have the capacity to do it.” Id. 

 Congress has given the FCC authority to issue interpretative rules pertaining to the 

TCPA. See e.g., 47 U.S.C. § 227(b)(2) (directing the FCC to “prescribe regulations to 

implement the requirements of this subsection”); ACA Int’l v. FCC, 885 F.3d 687, 693 

(D.C.C. 2018) (“The TCPA vests the Commission with responsibility to promulgate 

regulations implementing the Act’s requirements”). In 2015, the FCC issued an order 

authorizing an expansive interpretation of the statutory term “capacity” in determining 

whether a device is an autodialer under the TCPA. In the Matter of Rules and 

Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C.R. 7961 (2015) 

(“2015 FCC Order”). Specifically, the 2015 FCC Order adopted an interpretation that 

would allow courts to consider not only a device’s present uses or abilities in assessing 

whether it was an ATDS, but also its “potential functionalities.” Id. at 7974. 

 In their briefs, the parties dispute whether the Court should apply the FCC’s 

expansive interpretation of “capacity” in determining whether the 3Seventy Platform is 

an ATDS.3

 At the time that GoDaddy filed its Motion for Summary Judgment, eleven 

petitions relating to this broad definition had been consolidated in the D.C. Circuit Court 

of Appeals,4

 but the opinion had not yet been issued. After consolidation of these 

 3

 The Federal Communications Act (“FCA”) requires that a party challenging the validity of a FCC order do so in a federal court of appeals. 47 U.S.C. § 402(a); 28 U.S.C. § 2342. 

Given this jurisdictional limitation, an order of the FCC that interprets the TCPA is binding on district courts until and unless a court of appeals decides to set it aside. 28 U.S.C. § 2342(1). See also Luna v. Shac, LLC, 122 F. Supp.3d 936, 939 (N.D. Cal. 2015) (noting that the Hobbs Act “jurisdictionally divests district court from ignoring FCC rulings interpreting the TCPA”). But see e.g., Marks v. Crunch San Diego, 55 F. 

Supp.3d 1288, 1291 (S.D. Cal. 2015) (finding that FCC does not have the statutory authority to expand the TCPA’s definition of an ATDS because unlike 227(b) and (c), 

section 227(a) “does not include a provision giving the FCC rulemaking authority”). Unlike the defendant in Marks, GoDaddy does not argue that the FCC’s interpretations of an ATDS are invalid because they are outside its rulemaking authority. Instead, GoDaddy argues that the Court need not look to the FCC interpretations in light of the Ninth Circuit’s pronouncement in Satterfield that the statutory definition of an ATDS is “clear and unambiguous.” (MSJ, Doc. 79 at 11 (citing 569 F.3d at 951 (finding that where the statutory text is “clear and unambiguous” the court’s “inquiry begins with the statutory text, and ends there as well”)). 

4 See Prof’l Assoc. for C v. FCC, No. 15-1440 (D.C. Cir. Dec. 11, 2015); Portfolio 

Recovery Assocs. v. FCC, No. 15-1314 (D.C. Cir. Sept. 9, 2015); Rite Aid Corp. v. FCC, No. 15-1313 (D.C. Cir. Sept. 8, 2015); Vibes Media, LLC v. FCC, No. 15-1311 (D.C. Cir. 

Sept. 8, 2015); Chamber of Commerce v. FCC, No. 15-1306 (D.C. Cir. Sept. 3, 2015); 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 6 of 18
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

petitions, the Ninth Circuit sua sponte stayed a case dealing with issues related to the 

definition of an ATDS until the D.C. Circuit court issued its opinion. See Marks v. 

Crunch San Diego, Case No. 14-56834 (9th Cir. Dec. 14, 2016). 

 On March 16, 2018, before this Court had ruled on the parties’ motions, the 

United States Court of Appeals for the District of Columbia Circuit set aside the FCC’s 

broad definition of “capacity”, finding that it constituted an “unreasonably expansive 

interpretation of the statute.” See ACA Int’l, 885 F.3d at 692. The court specifically held 

that the FCC’s definition of an ATDS could not be sustained “at least given the 

Commission’s unchallenged assumption that a call made with a device having the 

capacity to function as an autodialer can violate the statute even if autodialer features are 

not used to make the call.” Id. at 695. In so finding, the ACA Int’l court did not, 

however, think that “capacity” necessarily only meant a device’s “present ability.” Id. at 

696 (expressing doubt that a definition of “capacity” that only accounted for a devices’ 

“‘present ability,’ e.g., its current and unmodified state...should carry dispositive weight 

in assessing the meaning of the statutory term”). Indeed, the court stated that 

even under the ostensibly narrower, ‘present ability’ interpretation...a 

device that ‘presently’ (and generally) operates as a traditional telephone 

would still be considered [to] have the ‘capacity’ to function as an ATDS if 

it could assume the requisite features merely upon touching a button on the 

equipment to switch it into an autodialer mode. Virtually any 

understanding of ‘capacity’ thus contemplates some future functioning 

state, along with some modifying act to bring that state about. 

Id. (emphasis added). The inquiry, suggested the ACA Int’l court, should therefore focus 

“less on labels such as ‘present’ and ‘potential’ and more on considerations such as how 

much is required to enable the device to function as an autodialer.” Id. (emphasis 

added). 

. . . . 

 

Consumer Bankers Ass’n v. FCC, No. 15-1304 (D.C. Cir. Sept. 3, 2015); salesforce.com, 

Inc. v. FCC, No. 15-1290 (D.C. Cir. Sept. 1, 2015); Prof’l Ass’n for Customer 

Engagement, Inc. v. FCC, No. 15-1244 (D.C. Cir. July 29, 2015); Sirius XM Radio, Inc. 

v. FCC, No. 15-1218 (D.C. Cir. July 14, 2015); and Professional Association for 

Customer Engagement, Inc. v. FCC, No. 15-2489 (7th Cir. July 14, 2015). 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 7 of 18
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 The D.C. Circuit Court of Appeals’ decision in ACA Int’l v. FCC forecloses 

Plaintiff’s argument that the FCC’s expansive interpretation of the term “capacity” in its 

2015 Order is binding on this Court.5

 The Court thus declines Plaintiff’s invitation to 

undergo an analysis of whether the 3Seventy Platform had the potential capacity to 

operate as an autodialer in 2015. GoDaddy’s request for a stay on these grounds is 

therefore denied as unnecessary. 

 However, the Court finds the ACA Int’l court’s statement on the proper “capacity” 

inquiry both instructive and in line with Ninth Circuit precedent on the issue. See 

Satterfield, 569 F.3d at 951 (remanding case where district court erroneously limited its 

analysis to only whether the system actually performed the requisite functions and not 

whether the system had the capacity to perform the requisite functions). To the extent the 

Court finds the undisputed facts support GoDaddy’s contention that the 3Seventy 

Platform lacked the ability to operate as an autodialer at the time the text message was 

sent, the Court will also investigate whether a dispute of material fact exists as to “how 

 5

 The precedential effect of ACA Int’l has been disputed by many district courts across the country, mostly in the context of determining whether a stay pending the D.C. Circuit Court’s decision would be warranted. Courts have reached conflicting decisions on the issue. This Court finds that the decision in ACA Int’l is binding on district courts in this 

circuit. Here, eleven petitions for review of the 2015 FCC Order were consolidated in the 

D.C. Circuit Court of Appeals – one of which originated in the Seventh Circuit. See 

Professional Association for Customer Engagement, Inc. v. FCC, No. 15-2489 (7th Cir. 

July 14, 2015). The Ninth Circuit has held that when agency regulations are challenged in more than one federal court of appeals, and subsequently consolidated and assigned to a single circuit court by the Judicial Panel on Multidistrict Litigation, the resulting decision is binding outside of that circuit. See Peck v. Cingular Wireless, LLC, 535 F.3d 

1053, 1057 (9th Cir. 2008) (noting that an Eleventh Circuit decision regarding the 

validity of an FCC order was “binding outside of the Eleventh Circuit” where the Judicial 

Panel on Multidistrict Litigation had consolidated challenges from both the Eleventh and 

Second Circuits). Accord MCI Telecommunications Corp. v. U.S. West Communications, 204 F.3d 1262, 1267 (9th Cir. 2000). Peck and MCI Telecommunications Corp. both 

stand for the proposition that “if the D.C. Circuit were to vacate (or uphold) one or more 

of the challenged FCC interpretations, this court could not instead continue to follow the 

FCC’s now-vacated (or not follow the FCC’s now-affirmed) interpretations in resolving Plaintiff’s claims.” Sliwa v. Bright House Networks, LLC, 2016 WL 3901378 at *3 

(M.D. Fla. July 19, 2016). See also Marshall v. CBE Group, Inc., 2018 WL 1567852 at 

*5 n. 4 (D. Nev. Mar. 30, 2018) (rejecting Plaintiff’s argument that ACA Int’l was not 

binding on that court). Indeed, the Ninth Circuit’s decision to stay at least one fully- briefed and argued appeal pending the D.C. Circuit’s decision, see Marks v. Crunch San 

Diego, LLC, Case No. 14-56834 (9th Cir. Dec. 14, 2016), offers additional support that the decision would have binding effect on the Ninth Circuit Court of Appeals, which is of course binding on this Court. 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 8 of 18
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

much” would be required to enable such capacity. ACA Int’l, 855 F.3d at 692. If ATDS 

capacity could be enabled “merely upon touching a button,” such fact will preclude 

summary judgment. Id. at 695. However, if more is needed, the 3Seventy Platform will 

not be considered an autodialer for purposes of the statute. Id. at 692. See also Gragg v. 

Orange Cab Co. Inc., 995 F. Supp. 2d 1189, 1196 (W.D. Wash. 2014) (rejecting the 

suggestion that that Satterfield stood for the proposition that “a system that has to be 

reprogrammed or have new software installed in order to perform the functions of an 

ATDS” would nonetheless be an ATDS under the statute). 

 To fully understand what exactly amounts to having this “capacity,” however, the 

Court must first determine what functions a device must have to qualify as an ATDS 

under the statute. The parties here, like many before them, dispute the boundaries of the 

required functions in subsections (A) and (B) of § 227(a)(1). These issues were also 

addressed by the ACA Int’l court. 

1. Capacity “to store or produce telephone numbers using a random or 

sequential number generator”

 GoDaddy first contends that the 3Seventy Platform does not have the capacity to 

store or produce telephone numbers to be called using a random or sequential number 

generator, as required by the language of § 227(a)(1)(A). Plaintiff disagrees, contending 

that the 3Seventy Platform has the capacity to store preprogrammed telephone numbers 

to be called, which pursuant to FCC interpretative guidelines, is all the statute requires. 

(Doc. 96 at 9). 

 Over the past two decades, parties have petitioned the FCC for clarification on 

what functions are required or omitted from the definition of an ATDS under the TCPA. 

See e.g., 2003 FCC Order; Rules and Regulations Implementing the Tel. Consumer Prot. 

Act of 1991, 23 F.C.C.R. 559 (2008) (“2008 FCC Order”); Rules and Regulations 

Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 15391 (2012) (“2012 

FCC Order”) (collectively, “FCC ATDS Orders”). One of the issues that has repeatedly 

been raised is whether a device can qualify as an ATDS even though the device itself 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 9 of 18
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

does not have the capacity to generate numbers randomly or sequentially. The FCC’s 

guidance on these queries became increasingly muddled after it determined that 

“predictive dialers” should be included in the definition of an ATDS. Commonly used by 

telemarketers, predictive dialers are devices that, among other things, dial numbers from 

preprogrammed lists as opposed to numbers that are randomly or sequentially generated.6 

In deciding to include predictive dialers in the definition of an ATDS, the FCC noted that 

[T]o exclude from [the restrictions on automated and prerecorded calls] 

equipment that use [sic] predictive dialing software from the definition of 

“automated telephone dialing equipment” simply because it relies on a 

given set of numbers would lead to an unintended result. Calls to 

emergency numbers, health care facilities, and wireless numbers would be 

permissible when the dialing equipment is paired with predictive dialing 

software and a database of numbers, but prohibited when the equipment 

operates independently of such lists and software packages. We believe the 

purpose of the requirement that equipment have the ‘capacity to store or 

produce telephone numbers to be called’ is to ensure that the prohibition on 

autodialed calls not be circumvented. 

2003 FCC Order at 14092-93. 

 In 2015, the FCC then seemed to confirm an even more expansive definition of “to 

store or produce telephone numbers using a random or sequential number generator” that 

would include devices beyond the limited category of predictive dialers. ACA Int’l, 885 

F.3d at 702. In its review of the issue, the ACA Int’l court noted that the FCC’s 2015 

Order had again failed to offer meaningful, reasoned guidance as to the meaning of the 

phrase “using a random or sequential number generator.” Id. at 701. Specifically, the 

court noted that the FCC had failed to clarify “whether a device must itself have the 

ability to generate random or sequential telephone numbers to be dialed” or whether it is 

“enough if the device can call from a database of telephone numbers generated 

 6

 As summarized in Marks v. Crunch San Diego, LLC: “In most cases, telemarketers 

[using predictive dialers] program the numbers to be called into the equipment, and the dialer calls them at a rate to ensure that when a consumer answers the phone, a sales person is available to take the call. The principal feature of predictive dialing software is a timing function, not number storage or generation. These machines are not conceptually different from dialing machines without the predictive computer program attached.” 55 F. Supp. 3d 1288, 1293, n. 7 (S. D. Cal. 2014) (citing 2003 FCC Order at 14092). 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 10 of 18
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

elsewhere[.]” Id. The court found the FCC “to be of two minds on the issue.” Id. On 

the one hand, said the court, the 2015 Order seemed to clearly distinguish (1) equipment 

that can randomly or sequentially generate numbers and then dial; from (2) equipment 

that merely dials from a stored calling list. Id. at 702. In doing so, the court observed 

that the FCC implicitly suggested that a device that did not randomly or sequentially 

generate numbers and dial would not qualify as an ATDS. Id. But in other respects, the 

court found that the 2015 Order also suggested that equipment can meet the statutory 

definition even if it did not have the ability to generate and dial random or sequential 

numbers. Id. Accordingly, the ACA Int’l court asked: 

So which is it: does a device qualify as an ATDS only if it can generate 

random or sequential numbers to be dialed, or can it so qualify even if it 

lacks that capacity? The 2015 ruling, while speaking to the question in 

several ways, gives no clear answer (and in fact seems to give both 

answers). It might be permissible for the Commission to adopt either 

interpretation. But the Commission cannot, consistent with reasoned 

decisionmaking, espouse both competing interpretations in the same order. 

Id. at 702-03. Given the lack of clarity on the issue, the court “set aside” the FCC’s 

interpretations of “using a random or sequential number generator.” Id. at 703. 

 As a result of the D.C. Circuit’s holding on this issue, this Court will not defer to 

any of the FCC’s “pertinent pronouncements” regarding the first required function of an 

ATDS, i.e., whether a device that has the capacity to store or produce telephone numbers 

“using a random or sequential number generator.” ACA Int’l, 885 F.3d at 701 (rejecting 

FCC’s objection that the court lacked jurisdiction to hear a challenge concerning the 

functions an ATDS must be able to perform on the grounds that the 2015 FCC Order 

merely reaffirmed prior orders on the issue: “The agency’s prior rulings left significant 

uncertainty about the precise functions an autodialer must have the capacity to perform”). 

 To date, several courts in the Ninth Circuit have adopted the FCC’s interpretation 

that a device may nevertheless meet the autodialer definition even when it only dials from 

a fixed set of numbers, e.g., when the device itself lacks the capacity to generate random 

or sequential numbers to be dialed. See e.g., Luna, 122 F. Supp. 3d at 940 (finding “fact 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 11 of 18
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

that [defendant’s] system has the ability to send text messages from preprogrammed lists, 

rather than randomly or sequentially, does not disqualify it as an ATDS”); Glauser, 2015 

WL 475111, at *6 (noting “the capacity for random/sequential dialing is not required for 

TCPA liability”); McKenna v. WhisperText, 2015 WL 428728, at *3 (N.D. Cal. Jan. 20, 

2015) (noting the courts in the northern district of California have held that the 2003 FCC 

order encompasses more than just predictive dialers but also any equipment that stores 

telephone numbers in a database and dials them without human intervention). But in so 

finding, these courts were bound and guided by the now-defunct FCC interpretations 

regarding this function. As such, the Court is also not persuaded to follow these 

holdings, particularly because the FCC interpretations relied upon by these courts were 

driven by policy considerations and not the plain language of the statute. 

 Indeed, in light of the ACA Int’l decision, this Court declines to apply such a broad 

interpretation of this function. Broadening the definition of an ATDS to include any 

equipment that merely stores or produces telephone numbers in a database would 

improperly render the limiting phrase “using a random or sequential number generator” 

superfluous. Cooper Indus., Inc. v. Aviall Services, Inc., 543 U.S. 157, 166 (2004) 

(courts are “loathe” to render a part of a statute superfluous). As noted by the court in 

Marks v. Crunch San Diego, “[i]f the statute meant to only require that an ATDS include 

any list or database of numbers, it would simply define an ATDS as a system with ‘the 

capacity to store or produce numbers to be called.’” 55 F. Supp. 3d 1288, 1292 (S.D. Cal. 

2014). The statute, as that court also noted, is plainly more limited, and requires that the 

numbers be stored or produced using a random or sequential number generator. Id. See 

also Satterfield, 569 F.3d 951 (finding that where the statutory language is “clear and 

unambiguous,” the court’s “inquiry begins with the statutory text, and ends there as 

well”). See also Cooper Indus., Inc., 543 U.S. at 167 (when possible court should follow 

“settled rule” and “construe a statute to give every word some operative effect”). 

 The 3Seventy Platform used by GoDaddy did not have the ability “to store or 

produce numbers to be called, using a random or sequential number generator.” 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 12 of 18
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

§ 277(a)(1). Numbers that were called could only be inputted into the 3Seventy Platform 

by a preprogrammed file or list provided by the user; the Platform could not randomly or 

sequentially generate these numbers by itself. Moreover, although it may be theoretically 

plausible that the 3Seventy Platform could be reprogrammed to have this capacity, it is 

undisputed that to enable such capability, a user would have to do much more than 

simply press a button. ACA Int’l, 855 F.3d at 695. Indeed, 3Seventy’s CEO testified 

that, although he was unsure exactly what would have to be done to enable such a 

capability or how long it would take to do so, such modification could only be done at his 

directive. (Doc. 81-1 at 34:12-36:1). As such, a user of the 3Seventy Platform, even if 

armed with the programming knowledge necessary to enable it to generate numbers 

randomly or sequentially, would not be able to do so without the permission of 

3Seventy’s CEO. The Court finds this barrier is akin to the auditing system used by the 

defendant in Marks, which banned users from inputting numbers into its system without 

their customer’s consent or a customer’s response to a call to action. 55 F. Supp. at 1292. 

Like the defendant in Marks, GoDaddy’s “access to the platform [was] limited,” here, by 

3Seventy’s CEO. Accordingly, the 3Seventy Platform lacked the capacity to become a 

device that could randomly or sequentially generate numbers to be dialed. 

2. Capacity to dial numbers without human intervention

 But even if the Court were to find that the inability to randomly or sequentially 

generate telephone numbers did not disqualify the 3Seventy Platform from being an 

ATDS, its inability to dial numbers without human intervention would. 

 The FCC has repeatedly confirmed that the defining characteristic of an autodialer 

is the ability to “dial numbers without human intervention.” ACA Int’l, 885 F.3d at 703 

(referencing the 2015 FCC Order at 7973 ¶¶ 14, 17; the 2008 FCC Order at 566 ¶ 13; and 

the 2003 Order at 14,092 ¶ 132). The ACA Int’l court found that such an interpretation 

“makes sense given that ‘auto’ in autodialer – or equivalently, ‘automatic’ in ‘automatic 

telephone dialing system,’ [] – would seem to envision non-manual dialing of telephone 

numbers.” Id. (internal citation to statute omitted). Nevertheless, when the FCC was 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 13 of 18
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

asked to confirm in its 2015 Order “that a dialer is not an autodialer unless it has the 

capacity to dial numbers without human intervention,” the FCC declined to do so. Id. 

(citing 2015 FCC Order at 7976 ¶ 20). The ACA Int’l court found the FCC’s rejection of 

the human intervention test “difficult to square” with its prior pronouncements regarding 

an autodialer’s “basic function.” Id. It accordingly set aside the FCC’s 2015 treatment of 

the matter. Id. (additionally noting that “[t]he order’s lack of clarity about which 

functions qualify a device as an autodialer compounds the unreasonableness of the 

Commission’s expansive understanding of when a device has the ‘capacity’ to perform 

the necessary functions”). 

ACA Int’l’s holding on this issue clarifies that this Court is not bound by the 

FCC’s 2015 rejection of the “human intervention” test. Instead, because the FCC’s prior 

interpretations and pronouncements regarding the “basic function” of an autodialer 

(1) “make[] sense”; (2) are in accordance with the treatment of this issue by courts in the 

Ninth Circuit; and (3) are otherwise consistent with a reasonable interpretation of the 

statute, the Court finds that a device will only constitute an ATDS if it can dial numbers 

(or send text messages) “without human intervention.” Id. 

 What constitutes the amount of “human intervention” required to take a device out 

of the category of an autodialer is a mixed question of fact and law. See 2015 FCC Order 

at 7973 ¶ 17 (“How the human intervention element applies to a particular piece of 

equipment is specific to each individual piece of equipment, based on how the equipment 

functions and depends on human intervention, and is therefore a case-by-case 

determination”). Here, material facts related to how the 3Seventy Platform operated in 

sending the text to Plaintiff are undisputed. The parties disagree as to whether these 

undisputed facts amount to “human intervention” such that the 3Seventy Platform falls 

outside the TCPA’s restrictive purview.7

 

. . . . 

 7

 Indeed, Plaintiff “denies in part” GoDaddy’s statements of fact in paragraphs 8-13 on the grounds that these actions have nothing “to do with what it takes to ‘send a text 

message.’” See Pl. SCOF ¶¶ 8-13. These are not factual disputes, however, but disputes as to the proper application of the law to those otherwise undisputed facts. 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 14 of 18
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 GoDaddy has identified multiple stages in the process of sending Plaintiff the text 

message in which human intervention was involved. First, an employee of GoDaddy 

provided 3Seventy with a list of customer phone numbers via its FTP site, which 

3Seventy then uploaded to the Platform. (Def. SOF ¶ 7; Pl. CSOF ¶ 7). The employee 

then navigated to the website, logged onto 3Seventy’s Platform, and selected the 

customer numbers it wished to send the text message. (Def. SOF ¶¶ 8, 9; Pl. CSOF ¶¶ 8, 

9). The employee then drafted the message and selected a time and date to send the 

message. (Def. SOF ¶¶ 10-11; Pl. CSOF ¶¶ 10-11). Finally, the employee entered a 

“captcha” – a device designed to ensure that a human, not a robot, was authorizing the 

desired message. (Def. SOF ¶ 12; Pl. CSOF ¶ 12). Only after the employee entered the 

captcha was the 3Seventy Platform able to send the message. (Zecchini Decl., Ex. 1, 

Doc. 81-1 at 109:5-13; 111). 

 In Luna v. Shac, LLC, the Northern District of California found similar types of 

human intervention precluded a system from being defined as an ATDS. The facts in 

Luna are nearly indistinguishable from the facts here. In Luna, like here, defendant had 

engaged a third-party mobile marketing company to provide defendant with a web-based 

platform so that it could send promotional text messages to its customers. 122 F. Supp. 

3d at 937. To send texts through that platform, an employee would similarly (1) input the 

numbers, either by typing them into the website or uploading them from an existing list 

of numbers; (2) log onto the platform to draft the message content; (3) designate the 

specific phone numbers to receive the message; and (4) click “send” on the website to 

transmit the message, which could be done either in real time or calendared to send at 

some future date. Id. The court there found that “human intervention was involved in 

several stages of the process prior to Plaintiff’s receipt of the text message, and was not 

limited to the act of uploading the telephone numbers to the [platform’s] database, as 

Plaintiff argues.” Id. at 941. Specifically, the court found that “human intervention was 

involved in drafting the message, determining the timing of the message, and clicking 

‘send’ on the website to transmit the message to Plaintiff.” Id. The court held that 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 15 of 18
- 16 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

because the “text message was sent as a result of human intervention,” the platform in 

question was not an ATDS and summary judgment in favor of the defendant was 

warranted. Id. 

 Other California district courts have also reached the same conclusion under 

similar facts. See McKenna, 2015 WL 428728, at * 3-4 (dismissing complaint under 

TCPA where allegations clearly stated that device could send text messages “only at the 

user’s affirmative direction to recipients selected by the user”); Glauser, 2015 WL 

475111, at *6 (granting summary judgment on TCPA claim where text messages were 

sent to plaintiff “as a direct response to the intervention” of the group’s creator, where 

creator had obtained numbers and uploaded them to the database). See also Gragg v. 

Orange Cab Co., Inc., 995 F. Supp. 2d 1189, 1194 (W.D. Wash. 2014) (finding human 

intervention to send texts was “essential” to system’s ability to dial and transmit the 

messages and as such system in question was not an ATDS). 

 Plaintiff says these cases are not persuasive because “they ignore and do not 

acknowledge the FCC’s 2015 Order and its rejection of a per se ‘human intervention’ 

test.” (Doc. 96 at 17). As explained, however, the FCC’s rejection of this test has been 

set aside and is not binding on this Court. As such, Plaintiff’s argument that that these 

stages of human intervention have “nothing to do with sending a text message” (Pl. 

CSOF ¶ 13) is unpersuasive. Moreover, the non-binding cases cited by Plaintiff in 

support of its argument are distinguishable and/or no longer good law in light of ACA 

Int’l. See Keim v. ADF Midatlantic, LLC, 2015 WL 11713593, at *6 (S.D. Fla. 2015) 

(finding FCC 2015 Order rejecting human intervention test precluded defendant’s 

argument that system was not at ATDS because text could only be sent by human 

intervention); Sterk v. Path, Inc., 46 F. Supp. 3d 813 (N.D. Ill. 2014) (finding system in 

question was an ATDS where the only human intervention identified prior to sending the 

text was the “collection of numbers for [the system’s] database of numbers”); Johnson v. 

Yahoo!, Inc., 2014 WL 7005102, at *5 (N.D. Ill. Dec. 11, 2014) (noting although it was 

“clear” that defendant’s personalized message involved human intervention, issues of fact 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 16 of 18
- 17 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

remained as to whether system could also “‘automatically’ (i.e., without human 

intervention)” send a system message). 

 The Court finds that the “level of human agency involved in transmitting the text” 

amounts to essential human intervention that precludes defining the 3Seventy Platform as 

an ATDS. Gragg, 995 F. Supp. 2d at 1194. Like the defendant in Luna, the alleged 

human intervention is not limited to GoDaddy’s collection and transmission of numbers 

to 3Seventy. GoDaddy also had to then log into the system, create a message, schedule a 

time to send it, and perhaps most importantly, enter a code to authorize its ultimate 

transmission. As such, the text was not sent automatically or without human intervention 

and thus was not sent using an autodialer, as that term is defined under the TCPA. 

Because Plaintiff cannot establish an essential element of his TCPA claim, GoDaddy’s 

motion for summary judgment is granted. 

3. GoDaddy’s Motion to Exclude Plaintiff’s Expert Report 

 As noted above, material facts related to the operation of the 3Seventy Platform 

were undisputed. The parties instead disputed (1) the governing law; and (2) the 

application of the governing law to those undisputed facts. On a motion for summary 

judgment, expert opinions are relevant if they help determine the existence of a dispute of 

material fact. See Celotex, 477 U.S. at 324. Here, Plaintiff’s expert has offered only 

conclusions of law with regard to the issues presented in the motion. Accordingly, the 

Court did not take his opinions into account in granting GoDaddy’s motion. GoDaddy’s 

motion to exclude this expert is therefore denied as moot. 

 For the foregoing reasons, 

IT IS ORDERED granting GoDaddy’s Motion for Summary Judgment 

(Doc. 79). GoDaddy’s Motion to Stay, in the Alternative (Doc. 79), is denied. 

IT IS FURTHER ORDERED denying Plaintiff’s Motion to Strike Defendant 

GoDaddy.com LLC’s Fourth Affirmative Defense of Consent as Legally Deficient 

(Doc. 74) and GoDaddy’s Motion to Exclude the Expert Report and Opinion of Jeffrey 

A. Hansen (Doc. 83) as moot. 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 17 of 18
- 18 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

IT IS FINALLY ORDERED dismissing with prejudice this matter in its 

entirety. The Clerk of Court is respectfully directed to enter judgment accordingly and 

terminate this case. 

Dated this 14th day of May, 2018. 

Honorable Diane J. Humetewa

United States District Judge 

Case 2:16-cv-00254-DJH Document 107 Filed 05/14/18 Page 18 of 18