In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. at 14092.; see alsoSterk v. Path, Inc., 46 F. Supp. 3d 813, 819 (N.D. Ill. 2014) motion to certify appeal granted, No. 13 CV 2330, 2014 WL 8813657 (N.D. Ill. Aug. 8, 2014).The question for many telemarketers and their ilk then became how much human intervention would be enough to remove a semi-automated dialing mechanism, or SMS message platform from the TCPA’s purview.
Co., No. 2:12-CV-2697-WMA, 2013 WL 5230061, at *4 (N.D. Ala. Sept. 17, 2013). The Commission, however, sided with the minority of district courts, see, e.g., Sterk v. Path, Inc., 46 F. Supp. 3d 813, 819–20 (N.D. Ill. 2014); Sherman v. Yahoo! Inc., 997 F. Supp. 2d 1129, 1142 (S.D. Cal. 2014), which have held that the capacity restriction refers to “future ability,” and ruled that “a piece of equipment can possess the requisite ‘capacity’ to satisfy the statutory definition of ‘autodialer’ even if, for example, it requires the addition of software to actually perform the functions described in the definition.” Order at 15 ¶ 18.