Courts Continue to Reject FCC’s Pre-2015 ATDS Rulings in Light of ACA International

In Johnson v. Yahoo!, Inc., No. 14-2028 (N.D. Ill.), the plaintiff alleged that Yahoo! violated the TCPA by automatically texting her after pulling her number from a database of stored numbers. The trial court initially denied Yahoo!’s motion for summary judgment because—based on FCC decisions from 2003, 2008 and 2012—it believed that there were genuine issues of material fact regarding whether the dialing equipment qualified as an ATDS. During the pendency of the case, however, the FCC issued its 2015 Declaratory Ruling & Order, which, as our regular readers well know, was appealed to and eventually rejected by the D.C. Circuit.  Continue reading   »

District Court Grants Summary Judgment for Defendant, Finding its Dialing System Is Not an ATDS

As consumers and businesses await clarity from the FCC regarding the definition of “automatic telephone dialing system” (“ATDS”), district courts throughout the country continue to grapple with competing appellate decisions in order to resolve pending cases within this uncertain and fast-changing legal landscape. A recent decision, Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018) (available here), provides an illustration of this current climate, as a Minnesota federal judge had to address four appellate cases concerning the ATDS definition from this year alone, including the seminal ACA International decision. The decision is also notable because the court concluded that the defendant’s “predictive dialing systems” did not violate the TCPA. Continue reading   »

FCC Receives Comments on Definition of ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC

We previously described the Ninth Circuit’s decision in Marks v. Crunch San Diego which, contrary to the D.C. Circuit’s ACA International ruling in March of this year, treated the definition of an ATDS expansively, holding that that statutory definition of an ATDS includes equipment that has the capacity (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator. We explained how the Ninth Circuit’s decision represented an improper interpretation of the ATDS statutory language. And we previously reported how the FCC sought expedited public comment on the Marks decision. Continue reading   »

District Court Applies TCPA’s Plain Language to Grant Defendants Summary Judgment

Recently, the Eastern District of Michigan granted a motion for summary judgment in Gary v. Trueblue, Inc., No. 17-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018), after finding that a plaintiff failed to show that defendants’ telephone dialing system qualified as an ATDS under the statute’s plain language. This decision adds to the growing list of cases applying the plain language of the statute in the wake of ACA International. Continue reading   »

Court Holds Web-Based Texting Platform is Not an ATDS Because of Need for Human Intervention

A federal district court in the Southern District of Florida joined a list of courts that have found a web-based text messaging platform to fall outside the purview of the TCPA due to the amount of human intervention required to send a text message. In Ramos v. Hopele of Fort Lauderdale, LLC, et al., the plaintiff brought a putative class action alleging that the defendants violated the TCPA by sending her unsolicited text messages. The parties each moved for summary judgment. The plaintiff argued that the texting platform was, as a matter of law, an ATDS. The defendants argued that the web-based texting platform at issue did not meet the statutory definition of an ATDS because it cannot send text messages without human intervention. Continue reading   »

Defendant in Marks v. Crunch San Diego, LLC Asks Ninth Circuit for Rehearing En Banc

As we previously reported here, the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) recently expanded the definition of “automatic telephone dialing system,” at least within the Ninth Circuit. And in response, the FCC issued a Public Notice just last week (covered here) seeking further comment on how to interpret the ATDS definition in light of Marks. The comment period closes on October 24, 2018. Continue reading   »

FCC Seeks Further Comment on the Definition of an ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC

On October 3, 2018, the FCC issued a Public Notice requesting further comment on “what constitutes an automatic telephone dialing system” under the terms of the TCPA in light of the Ninth Circuit’s recent decision in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018). Continue reading   »

District Court Holds Article III Standing Allegation Not Required to Remove

As we have frequently discussed, Article III standing is a recurring issue in TCPA cases. The Southern District of Florida recently added to the precedent in this area when it denied a plaintiff’s motion to remand, holding that defendants did not need to concede plaintiff’s Article III standing in their notice of removal. Gonzalez v. TCR Sports Broadcasting Holding, LLP, No. 18-cv-20048, 2018 WL 4292018 (S.D. Fla. Sept. 10, 2018). Continue reading   »

Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take

As discussed here on the Blog, the Ninth Circuit ruled last Friday in Marks v. Crunch San Diego, LLC that equipment need not have the capacity to dial numbers randomly or sequentially to be an ATDS under the TCPA. Rather, according to the Ninth Circuit, it is sufficient for equipment to have the capacity “to store numbers to be called . . . and to dial such numbers automatically (even if the system must be turned on or triggered by a person)” to be an ATDS.

Law360 also published an article addressing the impact of the decision entitled “Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take,” and TCPA Blog contributor Justin Kay was quoted in the article. Continue reading   »