No. 20-1961 ___________________________

Colby L. Beal

Plaintiff - Appellant

v.

Outfield Brew House, LLC, doing business as Budweiser Brew House

Defendant - Appellee ___________________________

No. 20-3581 ___________________________

Zachary Smith, individually and on behalf of all others similarly situated; Brian Kagarice

Plaintiffs - Appellants

v.

Truman Road Development, LLC, doing business as No Other Pub, formerly known as Kansas City Sporting and Social Club, LLC; The Cordish Companies, Inc.; Entertainment Consulting International, LLC

Defendants - Appellees

United States of America

Intervenor - Appellee ____________ Appeal from United States District Court for the Western District of Missouri ____________

Submitted: November 17, 2021 Filed: March 24, 2022 ____________ Before COLLOTON, GRASZ, and KOBES, Circuit Judges. ____________ GRASZ, Circuit Judge.

This is a consolidated appeal with a single issue: whether an automated marketing system that sends promotional text messages to phone numbers randomly selected from a database of customers’ information is an automated telephone dialing system (an “Autodialer”) under the Telephone Consumer Protection Act (the “TCPA”). The district court1 held it was not. We agree.

I. Background

Appellees Outfield Brew House, LLC and Truman Road Development, LLC operate separate bar establishments (the “Establishments”). The Establishments use a marketing software called “Txt Live,” which allows them to send text messages to former and potential customers. Appellants are persons who received promotional text messages from one of the Establishments through Txt Live. Appellants argue these messages violated the TCPA because they were sent using an Autodialer without Appellants’ consent. The sole dispute in this appeal is whether Txt Live falls within the TCPA’s definition of an Autodialer.

1 The Honorable Douglas Harpool, United States District Judge for the Western District of Missouri, and the Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri. -2- Understanding the function of the Txt Live software is central to resolving this issue. Txt Live is used to maintain a database that stores the contact information of the Establishments’ former and potential customers. The Establishments’ employees manually enter the contact information, including phone numbers, into the Txt Live database. Txt Live is not capable of randomly or sequentially generating phone numbers.

To send a mass text message through Txt Live, employees first narrow the list of recipients using filters. Txt Live’s filters can limit text messages to a certain target audience based on a variety of demographic factors. Next, the employees select the number of potential customers to whom the text message will be sent. The employees then draft or select the content of the message and hit “send.”

When the employees hit “send,” Txt Live performs a few tasks. First, Txt Live applies the chosen filters. Txt Live then shuffles the target contacts using a numerically-based randomizer. If the number of people who meet the filtered criteria exceed the number of people to whom the message will be sent, Txt Live selec