On Thursday, the United States Supreme Court agreed to review the question of what type of dialing equipment qualifies as an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA). The Court’s review arises from a challenge to the Ninth Circuit’s broad definition of ATDS. The plain language of the TCPA states that an ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” 47 U.S.C. § 227(a)(1). Since the D.C. Circuit abrogated the Federal Communications Commission (FCC) rulings construing that language, see ACA International v. FCC, 885 F.3d 687, 701 (D.C. Cir. 2018), a split has emerged among the federal circuit courts that have examined the definition. The Ninth and Second Circuits have held that a dialing system need only have the capacity to “store numbers to be called” and “to dial such numbers automatically” to constitute an ATDS. See Duran v. La Boom Disco, Inc., 955 F.3d 279, 283-84 (2d Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052-53 (9th Cir. 2018). The Third, Seventh, and Eleventh Circuits, on the other hand, have reined in the definition of ATDS. These courts have held that a system cannot constitute an ATDS where it lacks the capacity either to (1) store telephone numbers to be called using a random or sequential number generator, or (2) produce telephone numbers to be called using a random or sequential number generator. See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 464, 469 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301, 1310 (11th Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116, 119-21 (3d Cir. 2018).Read More
On Monday, the United States Supreme Court issued a decision upholding the broad prohibition against autodialed calls to cells phones under the Telephone Consumer Protection Act (TCPA) but ruling that a 2015 exception, which had allowed autodialed calls for the purposes of collecting federally-backed debts such as student loans and mortgage debts, violated the First Amendment. Thus, the Court held that the exception is invalid and must be severed from the statute. Under Section 227(b)(1)(A)(iii) of the TCPA, it is unlawful to “make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell phone. See 47 U.S.C. § 227(b)(1)(A)(iii). In 2015, Congress passed an exception that permitted autodialed calls “made solely to collect a debt owed to or guaranteed by the United States.” Id. A number of political and nonprofit organizations, seeking to make autodialed calls to cell phones for political purposes, filed suit seeking to invalidate Section 227(b)(1)(A)(iii) in its entirety on the basis that the 2015 exception impermissibly favored government debt-collection speech over political and other speech in violation of the First Amendment of the Constitution. The plaintiffs reasoned that the 2015 exception “undermine[d] the credibility” of the government’s interest in consumer privacy and that if Congress no longer had a genuine interest in consumer privacy, then the underlying 1991 robocall restriction is no longer justified and is thus unconstitutional.Read More
The Federal Communications Commission (FCC) recently issued a declaratory ruling on a petition seeking clarification of the definition of an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. In its order, the FCC ruled that a text messaging platform that requires a person to actively and manually dial a recipient’s number and transmit those messages, and that lacks the capacity to transmit more than one message without a person manually dialing each number, is not an ATDS under the TCPA. The FCC concluded such a system does not meet the definition of ATDS because it does not store or produce numbers to be called using a random or sequential number generator and dial such numbers automatically. See FCC Order ¶¶ 3, 8–12. Although not expressly stated, the FCC ruling is consistent with prior decisions of the Third, Seventh, and Eleventh Circuit Courts of Appeals, discussed here, specifically in that curating a list of numbers, and then dialing the numbers from that list, is not sufficient to establish the use of an ATDS under the TCPA. The FCC order may present businesses facing TCPA lawsuits with another basis to challenge the Ninth and Second Circuit Courts of Appeals’ decisions that construed the definition of ATDS more broadly than Third, Seventh, and Eleventh Circuit’s definition.