On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”
Category - "Automatic Telephone Dialing System"
Court Enters Summary Judgment Against Plaintiff, Finds No Triable Issues Regarding Revocation of Consent
The Eastern District of California recently entered summary judgment against a plaintiff because it found that the plaintiff failed to revoke his consent to receive auto-dialed calls on his cell phone. Wright v. USAA Savings Bank, No. 19-0591, 2020 WL 2615441, at *1-5 (E.D. Cal. May 22, 2020). The case illustrates that defendants in the Ninth Circuit can still prevail on consent and other issues even though they may face an uphill battle on ATDS issues.
The plaintiff in Wright applied for a credit card and listed his cell phone number on the application. Id. at *1. He developed terminal cancer in 2018 and failed to make payments on the credit card. Id. Between July 2018 and January 2019, defendants’ agent called Mr. Wright’s cellphone number using the Aspect Dialing System to collect the credit card debt. Id. Evidence established that the Aspect Dialing System is a predictive dialer that does not have and is not capable of using a random or sequential number generator to dial numbers. Id.
Southern District of Florida Court Holds that TCPA Plaintiff is Not the “Called-Party” Due to Call Forwarding
A court in the Southern District of Florida recently held that the plaintiff in a TCPA suit was not the “called party” under the statute because he received the calls in question only because his cousin rerouted them to the plaintiff’s phone. Thompson v. Portfolio Recovery Associates, LLC, No. 19-62220 (S.D. Fla. Apr. 25, 2020).
In Thompson v. Portfolio Recovery Associates, LLC, Plaintiff Andrew Thompson brought a TCPA suit against PRA—a debt collection company—for seventeen calls made to the Plaintiff’s cousin’s VoIP number that were automatically rerouted by the Plaintiff’s cousin to Plaintiff’s phone and answered by Plaintiff.
District of New Jersey Adopts Narrow ATDS Definition as Circuit Split Grows; Supreme Court Clarification Required
As readers of this blog know, a robust Circuit split has developed regarding the meaning of an ATDS. The Second and Ninth Circuits have taken one approach, while the Third, Seventh, and Eleventh Circuits have taken another. While we await Supreme Court guidance, lower courts continue to grapple with the ATDS issue. In Eisenband v. Pine Belt Automotive, Inc., No. 17-8549 (FLW) (LHG), 2020 WL 1486045 (D.N.J. Mar. 27, 2020), the District of New Jersey analyzed the definition of an ATDS and concluded that equipment that dials numbers from a manually prepared list does not constitute an ATDS.
Supreme Court Holds Oral Argument via Teleconference in Barr v. American Association of Political Consultants
On May 6, 2020, the Supreme Court held oral argument via teleconference in Barr v. American Association of Political Consultants. The argument focused on the two questions presented in Barr. First, whether the Telephone Consumer Protection Act’s (TCPA) government debt exception is an unconstitutional content-based restriction on speech. And second, if the government debt exception is unconstitutional, whether the remedy is to sever the exception or instead strike the TCPA’s restrictions on automated telephone equipment in their entirety. A recording of the argument is available below (audio begins at the :30 mark) and a transcript is available on the Supreme Court website.
Eleventh Circuit Narrows ATDS Definition
One area of continued confusion and conflict among courts reviewing TCPA cases has been how each approaches the scope of the statutory definition of an autodialer, as this critical matter can spell the difference between calls being deemed violative of the statute or acceptable. Last week, the Eleventh Circuit addressed a pair of appeals disputing the scope of the definition of “automatic telephone dialing system” (“ATDS”) under the TCPA. In Glasser v. Hilton Grand Vacations Co., the Eleventh Circuit determined that ATDS should include only equipment that generates numbers randomly or sequentially and then dials them automatically—effectively excluding equipment that dials numbers from preexisting lists. 2020 WL 415811, at *2 (11th Cir. Jan. 27, 2020). This places the Eleventh Circuit squarely at odds with the Ninth Circuit’s expansive definition of ATDS in Marks v. Crunch San Diego.