Seventh Circuit Reaffirms Gadelhak, Rejects Challenge to Narrow ATDS Definition

The Seventh Circuit last week affirmed its holding in Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020) that, to qualify as an “automatic telephone dialing system” (ATDS) under the TCPA, a device or calling system must have the ability to randomly or sequentially generate the phone numbers that it calls. As we reported here and here, this interpretation of the statute’s ATDS definition excludes systems and devices that place calls from a premade list of numbers, such as a list of customers’ mobile numbers. Courts remain divided on how to interpret the ATDS definition and the Supreme Court is expected to address the issue in a case that is currently before it, Facebook, Inc. v. Duguid.

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Eastern District of Texas Holds that Professional TCPA Litigant Can Face Counterclaims for Fraud

A federal magistrate judge in the Eastern District of Texas recently addressed a question of first impression for the jurisdiction: Can professional plaintiffs who manufacture TCPA claims face counterclaims for fraud brought by the defendant in an abusive lawsuit? According to the magistrate and the district judge that adopted her recommendation, the answer is yes.

In Cunningham v. USA Auto Protection, LLC, the plaintiff—professional litigant Craig Cunningham—alleged that defendant USA Auto Protection (USA Auto) made over twenty telemarketing calls to Cunningham’s cell phone without his consent. Case No. 4:20-cv-142, 2021 WL 434243, at *1 (E.D. Tex. Jan. 8, 2021).

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Northern District of Florida Picks Side in Creasy Split

In the aftermath of Barr v. American Association of Political Consultants, Inc.—the Supreme Court decision from July that held the TCPA’s government-debt exception to be an unconstitutional content-based restriction on speech—the country’s district courts cannot agree on whether they may adjudicate TCPA claims alleging conduct that transpired during the life of the exception (i.e., during the period from November 2, 2015 to July 6, 2020). Click here to see our collection of posts on this issue, which we have been following closely. Continue reading   »

District of Nevada Applies Agency Principles to TCPA Suit Against Messaging Platform and Consumer-Info Company, Dismisses Claims

Last week, the District of Nevada contributed to a growing consensus among Ninth Circuit district courts that TCPA liability generally does not extend to companies that produce equipment used to place unlawful calls—such as messaging platforms and contact lists— because the entities that use such equipment usually do so on behalf of another company, and not the equipment provider.

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Facebook and U.S. Government Submit Final Briefs in Supreme Court ATDS Fight, Oral Argument to Follow

This week, Facebook and the United States government filed responses to Plaintiff’s brief in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the circuit-splitting uncertainty over what does and does not qualify as an ATDS under the TCPA.  The Plaintiff’s brief—which we covered here—argues that the adverbial phrase “using a random or sequential number generator” modifies the verb “to produce” but not the verb “to store” in the statute’s definition of an ATDS.  See 47 U.S.C. § 227(a)(1).  If the TCPA is interpreted in this fashion, liability could follow from using any device that can store and automatically dial a number—including, among other things, virtually every smartphone in use today.

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Despite Absence of Settlement, Unclaimed Funds To Be Distributed To Government Or Charity Rather Than Revert To Dish Network

Last week, the federal judge presiding over a class action against Dish Network (“Dish”) denied a request for reversion of $11 million in unclaimed funds, deciding instead that the funds—which were the product of a trial rather than a settlement—should escheat to the government or be donated to a charity.  See Krakauer v. Dish Network, LLC, No. 14-0333 (M.D.N.C. Oct. 27, 2020).

In denying Dish’s request for reversion, the court explained that “[t]he TCPA is a deterrence statute, and reversion does not support th[at] statutory goal.”  Id. at 10.  It then cited cases for the proposition that unclaimed funds should not revert to a defendant if doing so would undermine the deterrence function of damages.  Id. at 5 (citing In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21, 32-33 (1st Cir. 2012); Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 1990)).

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Senators, State AGs, and Consumer-Protection Groups File Amicus Briefs Advocating Broad Interpretation of ATDS Definition

Last Friday, various elected officials and consumer-protection groups filed amicus briefs urging the Supreme Court to adopt the expansive interpretation of the ATDS definition for which Plaintiff Noah Duguid had advocated in a brief he filed the week before.  The recent briefs and other filings in the case can be found here.

The Facebook case arises from a security-alert text message that was sent to an individual who had not consented to automated calls, and at long last presents the Court with the critical question of what is and is not an ATDS.  (Recall that the FCC has said, and courts have either held or assumed, that text messages should be deemed “calls” for purposes of the TCPA.)

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Plaintiff in Facebook v. Duguid Files Supreme Court Brief Supporting Broad Interpretation of ATDS Definition

The Plaintiff in Facebook, Inc. v. Duguid—the case that promises to resolve the growing circuit split over the TCPA’s definition of an ATDS—has filed his merits brief in the Supreme Court.

Recall that the TCPA defines an ATDS as equipment that 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).  With help from noted grammarian Bryan Garner, who signed the brief as his new co-counsel, Duguid argues that the language of the statute and the canons of construction make clear that the adverbial phrase “using a random or sequential number generator” modifies the verb “to produce” but not the verb “to store.”  For example, he argues that the “distributive-phrasing canon” requires that modifying phrases apply only to words “which, by context, they seem most properly to relate.”  Brief at 20.  Because the verb “to store” does not in his view relate to the phrase “using a random or sequential number generator,” he argues that the Court need not interpret the phrase as modifying “to store.”  Id.; see also id. at 15 (calling this outcome a “semantic mismatch between a modifier and a verb”).  He similarly argues that the “last-antecedent canon”—which provides that a modifying phrase “should ordinarily be read as modifying only the [verb] that it immediately follows”—counsels in favor of construing the adverbial phrase as modifying only the adjacent verb “to produce” and not the other verb “to store.”  Id. at 20-21.

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Advertised Businesses Not Liable for Unauthorized Fax Advertisements, FCC Declares

On September 21, the FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling clarifying that businesses advertised via fax should not face “sender liability” for unsolicited faxes sent without prior authorization.  See Declaratory Ruling at ¶¶ 9, 17, In the Matter of Akin Gump, CG Docket No. 02-278 (Sept. 21, 2020).  This ruling provides some much-needed guidance on the scope of sender liability under the Junk Fax Prevention Act, an issue which has divided the courts.

In 2005, the Junk Fax Prevention Act amended the TCPA to prohibit the sending of unsolicited advertisements via facsimile, absent some excepted relationship between sender and recipient.  See Pub. L. No. 109-21, 119 Stat. 359 (2005).  The FCC has defined the “sender” of a fax for liability purposes as any “person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.”  47 C.F.R. § 64.1200(f)(10) (2019).[1]  The Commission also has observed that the “sender” of a fax is usually, but not always, the business advertised in the fax.  See “2006 Junk Fax Order,” FCC Rcd. 3787, 3808, ¶ 39 (2006).

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