Category Archives: Automatic Telephone Dialing System

Florida Governor Signs FTSA Amendments Into Law

May 26, 2023
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Automatic Telephone Dialing System

Yesterday, Florida’s Governor signed HB 761, which makes significant changes to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059).

HB 761 states that these amendments will not only take effect immediately, but also apply retroactively to any pending FTSA action styled as a class action but was not certified as such before the Governor signed the law. But there are already signs that the law’s retroactivity provision will face challenges, including one court’s recent observation that the constitutionality of that particular provision is unclear. See Murray v. Riders Share, Inc., No. 6:22-cv-2329-PGB-DCI, 2023 U.S. Dist. LEXIS 83388, at *3 n.2 (M.D. Fla. May 12, 2023) (“Retroactive application of a civil statute ordinarily transgresses constitutional limitations on legislative power ‘if the statute impairs vested rights, creates new obligations, or imposes new penalties.’”).

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Florida Senate Approves House Amendments to mini-TCPA

May 3, 2023
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Automatic Telephone Dialing System, Telemarketing

The Florida Senate passed HB 761 late yesterday by a 29-10 vote, less than a week after the bill sailed through the Florida House by a 99-14 vote. As we previously reported, passage of this bill paves the way for significant changes to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059). The bill must now be presented to the Florida Governor, who will have up to 15 days following presentment to sign or veto the bill. See Fla. Const., Art. III, § 8(a).

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FTSA Does Not Apply to Calls Selling Services to Businesses

May 2, 2023
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Automatic Telephone Dialing System, Telemarketing

The Middle District of Florida partially rejected a plaintiff’s motion for entry of final default judgment in Brown v. Care Front Funding, No. 8:22-cv-02408-VMC-JSS, 2023 U.S. Dist. LEXIS 60879 (M.D. Fla. Apr. 6, 2023), report and recommendation adopted, 2023 U.S. Dist. LEXIS 72933 (M.D. Fla. Apr. 26, 2023).

The plaintiff alleged that, despite being placed on the National Do-Not-Call Registry, she received three unsolicited calls from the defendant for the purpose of persuading her to obtain a business loan. After the defendant failed to respond to her complaint, the plaintiff moved for entry of default and then entry of default judgment. Magistrate Sneed found that the plaintiff had failed to allege that the calls were made for the solicitation of a sale of or extension of credit for any “consumer goods or services” for purposes of finding liability under the FTSA. The statute defines “consumer goods or services” as “real property or tangible or intangible personal property that is normally used for personal, family or household purposes . . . and any services related to such property.” Fla. Stat. § 501.059(1)(c). Magistrate Sneed noted that courts have interpreted similar statutes that provide for “consumer” protections related to goods and services that are primarily for personal, family, or household purposes to exclude goods and services in the business context.

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Legislature Poised to Overhaul Florida’s mini-TCPA

May 1, 2023
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Automatic Telephone Dialing System, Text Messages

The Florida Legislature is moving quickly to pass significant remedial amendments to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) before the end of the legislative session this Friday.  Should the proposed amendments succeed, they would restrict the scope and substance of the statute in several important ways.

First, the amendments would narrow the categories of equipment that are covered by the statute.  Whereas the current autodialing restrictions apply to “automated system[s] for the selection or dialing of telephone numbers,” the amended autodialing restrictions would apply only to “automated system[s] for the selection and dialing of telephone numbers” (emphasis added). Note, however, that even the amended version would restrict “the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.”

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Recent Ninth Circuit Opinions Address Standing and the Meaning of “Automatic Telephone Dialing System”

November 28, 2022

Actual Harm, Automatic Telephone Dialing System, Do-Not-Call Rules, Residential Line, Standing, Text Messages

The Ninth Circuit recently issued two noteworthy TCPA decisions.  Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space:  the definition of “automatic telephone dialing system” (“ATDS”).  Shortly before that, in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), the Ninth Circuit discussed both Article III and statutory standing.

Borden and the ATDS Definition

In a unanimous opinion, the Ninth Circuit recently affirmed the dismissal of a text message TCPA suit based on its holding that to qualify as an ATDS, dialing equipment “must generate and dial random or sequential telephone numbers,” not just any numbers.  See Borden, 2022 WL 16955661, at *1.

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District of Connecticut Rejects ATDS Allegations in Complaint Against Subway

August 5, 2022
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Automatic Telephone Dialing System, Text Messages

The District of Connecticut recently dismissed a TCPA action against the Subway Franchisee Advertising Fund Trust (“Subway”) because plaintiff failed to allege that Subway used an ATDS to send text messages to her cell phone.  Soliman v. Subway Franchisee Advertising Fund Trust Ltd., No. 3:19-cv-592, 2022 WL 2802347 (D. Conn. July 18, 2022).  The court held that “[t]he TCPA is clear:  a device is not an automatic telephone dialing system merely because it generates random or sequential index numbers that are used in turn to select which numbers to call from a stored list.”  Id. at *3 (emphasis in original).  The ruling serves as yet another example of a dialing technology that does not meet the definition of an ATDS following the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1171 (2021).

In Soliman, plaintiff alleged that she received a text message from Subway offering her a free bag of potato chips.  Id. at *1.  Plaintiff further alleged that she replied “STOP” to unsubscribe from the text messages but claimed that Subway texted her again a few days later.  Id. at *1.  Plaintiff subsequently filed a two-count class action lawsuit against Subway for negligently and intentionally violating the TCPA.  Id.  Subway filed a Rule 12(b)(6) motion to dismiss.  Id.

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Proposed Federal TCPA Legislation Offers a New and Broad ATDS Definition

July 20, 2022
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Automatic Telephone Dialing System, Congress, Supreme Court

On July 12, 2022, Representatives Raja Krishnamoorthi, D-Ill., and Katie Porter, D-Calif. introduced H.R. 8334 in the U.S. House of Representatives, which was referred to the Committee on Energy and Commerce. The bill would amend the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, to, among other things, “prohibit the use of automated telephone equipment to send unsolicited text messages.”

The TCPA presently defines “automatic telephone dialing system” (or “ATDS”) as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator . . . to dial such numbers.”  The law generally prohibits any person from making nonconsensual telemarketing or other types of telephone calls to a cell phone number using an ATDS.

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ATDS Status Turns on Capability of Dialing Equipment, Not Actual Use, Third Circuit Holds—But Liability Turns on Actual Use, Not Mere Capability

June 22, 2022
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2015 Declaratory Ruling, Automatic Telephone Dialing System, Debt Collection

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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Eighth Circuit Finds That System That Sends Texts to Stored Numbers is Not an ATDS, Rejects Plaintiffs’ Interpretation of Footnote 7 in Facebook v. Duguid

March 28, 2022
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Automatic Telephone Dialing System, Text Messages

Last week, the Eighth Circuit affirmed a finding that a dialing system does not qualify as an ATDS if it randomly selects numbers from a stored list. See Beal v. Truman Road Dev. (8th Cir. Mar. 24, 2022). The decision explains that dialing equipment is not an ATDS if it does not produce those numbers (either randomly or sequentially) in the first place, and is notable for flatly rejecting a misreading of Facebook v. Duguid that plaintiffs have been peddling for nearly a year now.

The court’s analysis turns on the mechanics of the dialing system and plain language of the statute. The defendants were drinking establishments that use the “Txt Live” platform to send promotional text messages to numbers that were manually entered by the defendant’s employees. Specifically, the platform allowed employees to filter down to a target list of recipients based on demographic factors, select the number of potential customers to receive the message, draft or select the content of the message, and then send messages to designated recipients. To do so, it “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 selects the recipients at the top of the randomized list first.” Id. at 3.

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Personal Cell Phones May Qualify as “Residential Telephones” Subject to DNC Rules, but Calls Made to a Pre-produced List Are Not ATDS Calls, Texas Northern District Holds

March 3, 2022
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Automatic Telephone Dialing System, Do-Not-Call Rules, Text Messages

Last week, the U.S. District Court for the Northern District of Texas held that mobile phones may qualify as “residential telephones” when used (as the Complaint alleged) primarily for “personal, family, and household use,” and thus be subject to the TCPA’s do-not-call rules (47 C.F.R. §§ 64.1200(c) & (d)).  This issue has sewn disharmony among federal district courts and may draw attention from higher courts.  But the court also joined the growing number of courts following Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), that have agreed that calls specifically directed to persons on a pre-produced list (like plaintiff) are not calls made using a “random or sequential number generator” and thus are not subject to the TCPA’s prior express consent requirement for calls made using an ATDS.

In Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761 (N.D. Tex. Feb. 24, 2022), the plaintiff alleged that, over the course of last year, he received eight unsolicited phone calls and six SMS text messages on his cell phone from a number he didn’t recognize.  Hunsinger picked up one of the calls and spoke with a representative for the defendant, to whom Hunsinger gave his email address.  Hunsinger subsequently received several calls and texts from the defendant referring to Hunsinger’s conversation with the representative and asking if he was still interested in a transaction.  These calls and texts were sent using an ATDS, Hunsinger alleged.  At all relevant times, Hunsinger’s number was on the national DNC list.  Id. at *1.

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