Judge Dismisses TCPA Class Action Against Crunch San Diego

A California federal judge has dismissed a text message spam lawsuit against Crunch San Diego LLC, saying that the federal law was misapplied and an autodialer was never used.

U.S. District Judge Cynthia Bashant dropped the Telephone Consumer Protection Act (TCPA) class action lawsuitagainst Crunch San Diego on Oct. 27.

Judge Bashant said that the TCPA was not used correctly in this text spam class action lawsuit because an autodialer was not used to send promotional text messages to its customers’ cell phones.

The TCPA class action lawsuit alleged that Crunch sent numerous promotional text messages advertising special pricing at the gym or new personal training rates from November 2012 to October 2013.

However, the Court found that the device used to send the text messages was not an autodialer because it could not store or produce telephone numbers.

Judge Bashant said, “because these modern-day devices are easily programmable, anyone who uses a computer or smartphone would be subject to the TCPA. It seems unlikely that Congress intended to subject such a wide swath of the population to a law designed to combat unwanted and excessive telemarketing.”

The Crunch TCPA Class Action Lawsuit

Plaintiff Jordan Marks alleged in his text spam class action lawsuit that Crunch, which operates gyms in California and in other states, sent unwanted promotional text messages to the plaintiff in violation of the TCPA.

Crunch filed a motion for summary judgment, claiming that it does not use an “automated telephone dialing system,” or autodialer, to transmit promotional text messages to its members or prospective members.

It maintained that it uses a third-party web-based platform to send promotional text messages, but that phone numbers are only inputted into the platform manually by human hand.

Crunch argued that because the platform it uses to send text messages “lacks the capacity to store or produce telephone numbers … using a random or sequential number generator,” it cannot, by definition, be an autodialer under the TCPA and, therefore, the TCPA does not apply.

The court noted that because the platform used by Crunch requires “human curation and intervention” for number entry, it could not reasonably be considered a random or sequential number generator within the purview of the TCPA.

Accordingly, because Crunch’s platform is not an autodialer within the meaning of the statute, the court found that Crunch did not violate the TCPA.

What is the Telephone Consumer Protection Act?

The TCPA was passed into law in 1991 to curtail certain kinds of invasive telemarketing practices. The TCPA was a merging of two bills in Congress, and it deals with several distinct issues:

• Use of automated dialing equipment and prerecorded messages.
• Telemarketing calls using “live” callers
• Facsimile (fax) transmissions

In 2003, the Federal Communications Commission (FCC) amended its rules under the TCPA to implement the national Do-Not-Call list. Under the TCPA, people who have received prerecorded calls or autodialed calls to cellphones may bring TCPA lawsuits against the person or company making those calls if they violate the TCPA.

The statute provides statutory damages, generally from $500 to $1,500 for each violation, which are paid to the consumer. A number of court challenges to parts of the TCPA have been brought without success.

The TCPA Class Action Lawsuit is Jordan Marks v. Crunch San Diego LLC, Case No. 14-cv-348-BAS-BLM, in the U.S. District Court for the Southern District of California.

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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