Among other things, the federal TCPA imposes liability for calling/texting cell phone numbers using an Automatic Telephone Dialing System (“ATDS”) without sufficient prior express consent. As defined by the TCPA, ATDS is “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The TCPA grants a private right of action and allows a plaintiff to recover statutory penalties of $500 per call/text in violation, or up to $1,500 for a knowing or willful violation. These statutory penalties have made the TCPA a favorite among class action plaintiffs’ attorneys seeking to hold companies liable for calls/texts over a four year statute of limitations period.
Dr. Shannon Petersen is a business litigator in the San Diego (Del Mar) office. He leads the firm’s TCPA Defense Team.
On April 1, 2021, the U.S. Supreme Court in the class action case of Facebook, Inc. v. Duguid, No. 19-511, resolved a circuit court split on the meaning of automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) by unanimously reversing the Ninth Circuit’s broad definition and narrowly interpreting ATDS. Bringing much needed clarity the Federal Communications Commission has not been able to provide to date, the Supreme Court held that to qualify as ATDS “a device must have the capacity to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.” This ruling significantly narrows liability, including class action liability, under the TCPA.
Continue Reading The U.S. Supreme Court Limits TCPA Liability By Narrowly Interpreting ATDS
On July 29, 2020, the Sixth Circuit joined the Second and the Ninth Circuits in expansively defining Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043 (6th Cir. July 29, 2020), the Sixth Circuit held that “devices that dial from a stored list of numbers”—i.e. “predictive dialers”—qualify as an ATDS under the TCPA. The Third, Seventh, and Eleventh Circuits have applied a more stringent definition, requiring that an ATDS have the capacity to generate random or sequential telephone numbers and to dial them. Now the Circuit Courts are split on this issue 3-3. The U.S. Supreme Court recently accepted review of the definition of ATDS and will presumably resolve this split in its next terms, likely by the spring of 2021.
Continue Reading The Sixth Circuit Broadly Defines ATDS, Widening The Split Among Circuits Before The Supreme Court Rules Next Year
On July 9, 2020, the U.S. Supreme Court granted certiorari in Facebook, Inc. v. Duguid, to resolve a split in authority on the meaning of Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). In TCPA class actions, millions of dollars of potential liability often turn on this one issue, and different courts have rendered different results. A Supreme Court decision should establish a uniform definition that will almost certainly alter TCPA litigation nationwide.
Continue Reading U.S. Supreme Court to Address Circuit Split on Definition of ATDS Under The TCPA
On July 6, 2020, the United States Supreme Court affirmed a ruling by the Court of Appeals for the Fourth Circuit, which found that an exception allowing government debt-related robocalls to cell phones is unconstitutional and must be severed from the rest of the Telephone Consumer Protection Act of 1991 (“TCPA”). Barr v. Am. Assn. of Political Consultants, Inc., No. 19-631, — S.Ct. —- (2020). Though the Court severed the offending exemption from the rest of the TCPA rather than invalidating the entire TCPA, the Court’s opinion provides a roadmap to making similar constitutional attacks on other portions of the TCPA, including regulations implemented by the Federal Communications Commission (“FCC”).
Continue Reading Death by a Thousand Cuts? Supreme Court Finds Government Debt Exception to TCPA Unconstitutional, Opening Door to Similar Attacks on FCC Regulations
In Duran v. LaBoom Disco, Inc., No. 19-600-cv (2d Cir. Apr. 7, 2020), the Second Circuit joined the Ninth Circuit in expansively defining Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). The Second Circuit held, like the Ninth Circuit before, that ATDS includes automated texts/calls to consumers from stored lists, while the Third, Seventh, and Eleventh Circuits have held the opposite, requiring that an ATDS make texts/calls not only automatically, but from a list of randomly generated numbers. The Second Circuit decision highlights the growing Circuit split on the issue and potentially foreshadows a date with the Supreme Court. For now, the decision will likely encourage TCPA class action plaintiffs to fill their dance cards in New York and other states in the circuit.
Continue Reading The Second Circuit Invites All The Party Plaintiffs To The Disco With Broad Definition Of ATDS Under The TCPA
The Telephone Consumer Protection Act (“TCPA”) generally prohibits automated calls, including text messages, to cell phones without sufficient prior express consent, and imposes a statutory penalty of $500 to $1,500 per call/text in violation. Calls that serve an “emergency purpose” are completely exempt from the TCPA. The FCC’s rules define “emergency purpose” to mean “calls made necessary in any situation affecting the health and safety of consumers.” See 47 C.F.R. § 64.1200(f)(4).
Continue Reading FCC Declares Certain Calls/Texts Regarding COVID-19 Are Exempt From The TCPA
The Seventh Circuit has recently joined the Second, Third, Sixth and Eleventh Circuits in adopting a narrow interpretation of Automatic Telephone Dialing System (ATDS) under the Telephone Consumer Protection Act (“TCPA”), one that excludes equipment that dials numbers from a customer database. See Gadelhak v. AT&T Services, Inc., No. 19-1738, — F.3d —-, 2020 WL 808270 (7th Cir. Feb. 19, 2020); see also Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301 (11th Cir. Jan. 27, 2020); Gary v. Trueblue, Inc., 786 F. App’x 555 (6th Cir. Sept. 5, 2019); King v. Time Warner Cable, 894 F.3d 473 (2d Cir. 2018); Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018).
Continue Reading Seventh Circuit Adopts Narrow Definition of Autodialer Under The TCPA
The California Court of Appeal recently made it more difficult for plaintiffs to certify class actions based on false advertising or fraud. In Downey v. Public Storage, Inc., Case No. B291662, ___Cal.App.5th___ (Feb. 6, 2020), the Court of Appeal affirmed an order denying class certification on the grounds that issues of deception and reliance were not susceptible to common proof.
In March 2015, several plaintiffs filed a class action against Public Storage, alleging that its $1 promotional rate was deceptive, violated California’s Unfair Competition Law (Bus. & Prof. § 17200 et seq.), and constituted a false advertisement. In particular, the plaintiffs alleged that the $1 promotional rate was deceptive because customers had to pay more than $1 for their first month of storage due to (1) having to pay for a new account fee, (2) being charged for a second month’s rent on the first day of the next calendar month, (3) having to pay for a lock for their storage unit, and (4) having to pay for insurance coverage.
Continue Reading California Court Sets High Bar For Class Certification In False Advertising Cases
Recently, the Sixth Circuit in Gary v. Trueblue, Inc., No. 18-2281, 2019 U.S. App. LEXIS 26959 (6th Cir. Sep. 5, 2019), weighed in on the meaning of Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). The TCPA generally prohibits calls and text messages to cell phones using an ATDS without prior express consent and imposes a statutory penalty of $500 per call or text in violation, or up to $1,500 per call/text for a knowing or willful violation. On a class action basis covering all calls/texts sent over four years, the potential liability can be crushing.
Continue Reading The Sixth Circuit Limits the Meaning of ATDS Under the TCPA
At the end of the Supreme Court’s most recent term, the Court released its long-awaited ruling in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (June 20, 2019)—a case that could have carried far-reaching ramifications for Telephone Consumer Protection Act (“TCPA”) litigation nationwide. The Supreme Court granted review to consider whether the Administrative Orders Review Act (also known as the Hobbs Act), 28 U.S.C. § 2342(1), requires district courts to accept the FCC’s legal interpretation of the statutory term “unsolicited advertisement” under the TCPA.
Continue Reading Supreme Court Punts On Whether FCC’s Interpretation of the TCPA Binds Federal Courts