A California man may not sue Greenwood Village-based Red Robin under the federal law governing telemarketing and robocalls after he received promotional text messages from the restaurant chain, a federal judge has determined.

Although the Telephone Consumer Protection Act places restrictions on the use of random number generators that “store or produce telephone numbers to be called,” Red Robin did not text Mark Mina at random. Instead, he willingly provided his phone number to the company.

Last week, U.S. District Court Judge Raymond P. Moore agreed those circumstances meant Mina had not stated a viable claim under the TCPA because Red Robin’s contacts with him did not employ an autodialer as the law defines it. Moore also rejected Mina’s other contention that mass text messages violated the law’s prohibition on the use of “artificial or prerecorded voice.”

“While the Court does not disagree with the notion that the policy of protecting telephone privacy might be advanced by a prohibition on unwanted text messages, that is not what the TCPA currently does,” Moore wrote in his Aug. 19 order. “And in common parlance, text messages simply are not considered ‘voices.'”

Congress enacted the TCPA in 1991 to address telemarketing calls, notably by placing restrictions on non-emergency use of autodialers without a person’s consent. Lawmakers declared the only effective way to stem the increasing tide of nuisance calls was to curb automated and prerecorded contacts.

Mina, of San Bernardino County, Calif., ate at a Red Robin restaurant in 2015 and enrolled in a promotional program at his server’s request. He then started receiving text messages about restaurant deals that, he claimed, came from the type of automated dialing system the TCPA prohibits.

“While the phone numbers to be called are stored in a list and not themselves randomly or sequentially generated,” his lawsuit alleged, “the texting platform uses an algorithm whereby a random or sequential number generator, similar to a randomization formula or sequential dialing formula, selects which number to dial from the stored list of numbers.”

Mina filed a proposed class action lawsuit in the Central District of California, based in Los Angeles, but Red Robin moved to transfer the case to Colorado. The company then sought to dismiss Mina’s claims, arguing Mina’s own admission that the phone numbers were not randomly generated had doomed his case. It cited various court decisions which held that dialing customer-provided numbers does not fall under the TCPA’s prohibition on autodialing.

In June, then-U.S. Magistrate Judge Nina Y. Wang reviewed the case and recommended Mina’s claims be dismissed. She did not believe the TCPA’s definition of autodialers included devices that select customer-provided numbers from a list, rather than truly dialing at random.

“Because Mr. Mina does not sufficiently allege that the phone numbers at issue were randomly or sequentially stored, and because allegations that a program randomly or sequentially selects numbers to be called are insufficient to establish that the program randomly or sequentially produces those numbers,” Wang wrote, “Mr. Mina fails to allege that Defendants used an autodialer to send him the subject text messages for purposes of the TCPA.”

She was similarly skeptical of Mina’s claims that Red Robin’s mass text messages to customers amounted to the use of a “voice.” Mina had attempted to argue the term “voice” should be broadly interpreted to mean a method of expression, rather than something audible. Writing text messages in advance only to send them to customers later, he contended, violated the TCPA’s prohibition on artificial or prerecorded voices.

Wang reasoned that, aside from Mina’s reliance on the dictionary, he had not pointed to any court cases that supported his definition of “voice.”

“The court is simply not persuaded that Congress intended to ascribe to the term ‘voice’ the metaphorical meaning Plaintiff urges the court to adopt here,” she added.

Although Mina objected to Wang’s recommendation, Moore, the district judge, concluded she correctly found Red Robin had not used the type of autodialer prohibited by the TCPA, nor had it employed a “voice” in its text messages. He dismissed the lawsuit.

The case is Mina v. Red Robin International et al.