Last week, the U.S. Court of Appeals for the Third Circuit concluded that the TCPA’s definition of “automatic telephone dialing system” (or “ATDS”) includes all dialing equipment with the present ability to generate random or sequential phone numbers and dial those numbers, regardless of whether the equipment’s owner actually uses those “ATDS functionalities.” But, importantly, a caller must actually use such functionalities in order to violate the statute’s prohibition on making autodialed phone calls, the Court further held.
In other words, a dialing system’s status as an ATDS turns on the system’s present capabilities, not how it is used. But whether a defendant is liable for using an ATDS turns on how the system is used, not just what it can do. Thus, the Court read the ATDS definition broadly but the liability provision narrowly, in a ruling that will give some comfort to companies that use their dialing equipment to contact customers or prospects from set lists, rather than to randomly generate phone numbers to be called indiscriminately.
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As our regular readers know, one of the central issues in the ACA International case was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. The D.C. Circuit found that it did not. As we explained at the time, ACA International explicitly set aside the portion of the FCC’s July 2015 Order that pertained to the definition of an ATDS, and by doing so also implicitly set aside the FCC’s prior statements on this subject in prior orders. Continue reading »
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 »
As we approach the November 2018 midterm elections, we expect that we will once again see (i) an uptick in the volume of political calls; (ii) a reminder from the FCC that the TCPA applies to those calls (emphasizing that such calls are prohibited if made to cell phones without the consent of the called party, and that all prerecorded calls to cell phones or landlines must comply with certain identification and line release requirements); and (iii) a handful of new lawsuits filed against campaigns, candidates, and committees that allegedly failed to heed the FCC’s warning—all topics we have covered here before. Two recent decisions from a federal court in West Virginia pertaining to the 2016 election serve as a reminder that these lawsuits can linger long after the election ends
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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 »
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 »
One of the central issues before the D.C. Circuit in ACA International v. FCC was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. It did not, and as we explained at the time the decision was issued, the D.C. Circuit set aside not only the portion of the FCC’s July 2015 Declaratory Ruling and Order pertaining to ATDS, but also the FCC’s prior rulings dating back to 2003. Following ACA International, and while the FCC considers how to amend its now-invalidated prior rulings, the plaintiffs’ bar has attempted to narrow the reach of ACA International, arguing that the D.C. Circuit set aside only the 2015 Declaratory Ruling and Order, and that the validity of the FCC’s prior rulings was not under review. Just as the D.C. Circuit rejected this argument, district courts across the country continue to reject this argument, most recently a federal district court in the Central District of California. Continue reading »
As we discussed last year, the Second Circuit has held that consumers cannot unilaterally revoke consent that was provided as part of a bilateral contract. See Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2017). In doing so, it explained that it is “black letter law” that a “party may not alter a bilateral
contract . . . without the consent of a counterparty,” and that nothing in the TCPA purports to “permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.” Although this seemingly straightforward statement is now settled within the Second Circuit, see, e.g., Harris v. Navient Solutions, LLC, No. 15-0546, 2018 U.S. Dist. LEXIS 140317 (D. Conn. Aug. 7, 2018), it remains unsettled elsewhere. Continue reading »
On July 12, 2018, the Northern District of Ohio dismissed a complaint that failed to “allege any facts that [the defendant] uses a system that has the ability to store or produce telephone numbers to be called using a random or sequential number generator.” Lord v. Kisling, Nestico & Redick, LLC, No. 1:17-CV-01739, 2018 WL 3391941, at *3 (N.D. Ohio July 12, 2018). It is the latest court to follow the lead of the D.C. Circuit’s ruling in ACA Int’l v. FCC, 885 F.3d 687, 692 (D.C. Cir. 2018), that vacated the FCC’s interpretation of automatic telephone dialing systems (“ATDS”). Continue reading »
The Third Circuit recently affirmed the Eastern District of Pennsylvania’s finding that Yahoo!’s email-to-text alert system does not qualify as an automatic telephone dialing system (“ATDS”). (Our previous discussions of this case are here, here, and here.) Following the District of Columbia Circuit’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Third Circuit held that the system at issue must be analyzed using a “present capacity” standard and that the plaintiff had failed to present any evidence to show that, under this standard, the system could function as an autodialer. Continue reading »