Tag: Supreme Court

1
Supreme Court Agrees to Review Growing Circuit Split on Definition of ATDS
2
Supreme Court Declares TCPA Government-Debt Exception Unconstitutional but Severs Provision to Preserve Remainder of TCPA

Supreme Court Agrees to Review Growing Circuit Split on Definition of ATDS

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau

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).   

The Supreme Court’s decision to review the definition of ATDS arises from a Ninth Circuit ruling that overturned the dismissal of a putative class action lawsuit in which the consumer claimed to have received text messages on his cell phone from an ATDS in violation of the TCPA.  The Ninth Circuit reaffirmed its broad interpretation of an ATDS and concluded that the consumer’s allegations that the disputed text messages were sent from equipment that automatically dialed his cell phone number from a database with a stored list of numbers were sufficient to plead the use of an ATDS.  The defendant’s petition for writ of certiorari asked the Court to resolve two questions—(1) “Whether the TCPA’s prohibition on calls made using an ATDS is an unconstitutional restriction of speech;” and (2) “Whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’”  The Supreme Court declined to review the first question, having issued an opinion on a related question this term discussed here.  The Court did agree to review the second question, and its decision has the potential to resolve the circuit split as to the meaning of ATDS.

Supreme Court Declares TCPA Government-Debt Exception Unconstitutional but Severs Provision to Preserve Remainder of TCPA

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau

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

Copyright © 2019, K&L Gates LLP. All Rights Reserved.