Facebook, Inc. v. Duguid, et. al., No. 19-511, 2021 WL 1215717 (S.Ct. April 1, 2021)
On April 1, 2021, the United States Supreme Court released its much anticipated decision addressing the definition the phrase “Automatic Telephone Dialing System” (“ATDS”) used in the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). At issue in the underlying case was whether technology used to send a text message constituted an ATDS. Writing for the Court, Justice Sotomayor, joined by Justices, Roberts, Thomas, Breyer, Kagan, Gorsuch, Kavanaugh and Barrett, wasted no ...
Harris v. Navient Solutions, LLC, No. 3:15-cv-546, 2018 WL 3748155 (D. Conn. Aug. 7, 2018)
Plaintiff signed promissory notes to secure student loans in which she provided her telephone number, agreed to update Defendant if her number changed and to the following clause:
"This Note may be modified only if you put the modification in writing and the modification is agreed to by any borrower or cosigner . . . I understand that you may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact me in connection with this loan or loan application. You may ...
Pinkus v. Sirius XM Radio, Inc., No. 16 C 10858, 2018 WL 3586186 (N.D. Ill. July 26, 2018)
Plaintiff filed suit, alleging Defendant violated the TCPA by, among other things, placing more than 100 calls to his cell phone using an Automatic Telephone Dialing System (ATDS). After the D.C. Circuit's decision invalidating the 2015 FCC Declaratory Ruling in ACA International, Defendant sought dismissal of Plaintiff's claims, arguing that the technology used to place calls did not meet the plain language definition of an ATDS in the TCPA. Plaintiff disagreed, contending Defendant used a ...
Both the House and Senate have proposed legislation that could have profound implications on TCPA litigation. The companion legislation introduced by Democratic Congressman Frank Pallone, Jr. and Senator Ed Markey entitled "Stopping Bad Robocalls Act" seeks to, among other things:
- Defines a "Robocall": As a call or text using equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator, except for calls made using only equipment that the caller demonstrates ...
Herrick v. GoDaddy.com, LLC, No. CV 16-00254-PHX-DJH, 2018 WL 2229131 (D. Ariz. May 14, 2018)
Background
In 2015, Defendant contracted with a third-party web-based software application company called 3Seventy to send a one-text marketing campaign to nearly 100,000 customers. To conduct the campaign, Defendant had to provide 3Seventy with a list of customer phone numbers, which Defendant did via an FTP site. 3Seventy then uploaded the list of numbers to its Platform after which time, Defendant navigated the website, manually logged onto the Platform and determined the numbers to ...
On May 14, 2018, in the wake of the landmark decision ACA International v. FCC, 855 F.3d 687 (D.C. Cir. 2018), the Federal Communications Commission (FCC) issued a Public Notice seeking comment on a myriad of topics including:
- What constitutes an Automatic Telephone Dialing System (ATDS) in light of the Court of Appeals' finding that the agency's "'capacious understanding of the device's 'capacity' lies considerably beyond the agency's zone of delegated authority"
- What functions a devise must be able to perform to qualify as an ATDS. The Court of Appeals' noted the FCC has defined the ...
The world of Telephone Consumer Protection Act (TCPA) litigation is constantly changing. With this evolution, new issues arise on almost a daily basis, challenging those prosecuting and defending these claims. A recent and increasingly litigated issue that both Plaintiff's and Defense counsel agree will likely serve as the next battleground of TCPA litigation is whether calls are made using an Automatic Telephone Dialing System, and particularly:
(1) What constitutes "capacity" as the term is used in the TCPA; and
(2) The level of human intervention necessary to remove a call ...
Eduardo Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP (M.D.Fla. Sept. 2, 2016)
Defendant called Plaintiff believing it was contacting a third party to collect debt on behalf of another. Plaintiff filed suit, asserting various claims including a claim for violation of the TCPA. The TCPA makes it unlawful to, among other things, initiate calls using any Automatic Telephone Dialing System (ATDS) or artificial or prerecorded voice to any telephone number assigned to a cellular telephone service. At issue was whether a LiveVox Human Call Initiator (HCI) is ...
Colette Jenkins v. MGage, LLC, No. 1:14-cv-2791-WSD (N.D. Ga. Aug. 12, 2016)
Plaintiff filed this TCPA lawsuit after receiving 150 text messages over an approximately one year period during which she tried to stop the messages on 17 occasions. Defendant moved for summary judgment, contending the messages were not sent using an Automatic Telephone Dialing System (ATDS) but rather as a result of human intervention. Thus, Defendant argued, since it did not use an ATDS (a vital component of a TCPA claim) to send the messages, the claim should be dismissed.
Granting summary judgment in ...
The Telephone Consumer Protection Act defines the phrase Automatic Telephone Dialing System (ATDS) as equipment that 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. On November 19, 2013, the FCC issued a public notice seeking comment on a Petition for Expedited Declaratory Ruling and/or Expedited Rulemaking filed by the Professional Association for Customer Engagement (PACE). The Petition seeks a Declaratory Ruling: 1. Clarifying that a dialing system is not an ATDS unless it has ...
Hunt v. 21st Mortgage Corp., No. 2:12-cv-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013) Pending before the court was a Motion to Compel Discovery during which the issue of what constitutes an Automatic Telephone Dialing System (ATDS) was addressed. The court began its analysis noting that the TCPA defines an ATDS as 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. Based on this definition, Plaintiff argued that while Defendant's system could not, in the state ...
Thrasher-Lyon v. CCS Commercial LLC, No. 11 C 04473, 2012 WL 5389722 (N.D. Ill. Nov. 2, 2012) Pending before the court was Defendants' Motion to Reconsider summary judgment granted in the named Plaintiff's favor, and alternative request for certification of the summary judgment decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Rejecting Defendant's Motion to Reconsider, the court did, however, certify its order for interlocutory appeal. Specifically, the court concluded that its summary judgment decision decided two controlling issues of law: (1) the ...
Buslepp v. Improv Miami, Inc., No. 12-601771-CIV, 2012 WL 4919809 (S.D. Fla. Oct. 16, 2012) Plaintiff filed a purported class action, contending that Defendant, which promotes and hosts events at its comedy club, sent unsolicited commercial text messages to potential customers using an automatic telephone dialing system (ATDS) and without prior express consent in violation of the TCPA. Plaintiff moved for summary judgment on his individual claims, which Defendant opposed contending Plaintiff failed to establish the elements of a claim under the TCPA. Noting that the TCPA ...
Meyer v. Portfolio Recovery Associates, LLC, No. 11-56600, 2012 WL 4840814 (9th Cir. Oct. 12, 2012) Pending before the U.S. Court of Appeals for the Ninth Circuit was the district court's: (1) Provisional certification of a class consisting of individuals with cell phone numbers that Defendant did not obtain from either a creditor or the class member, where the cell phone number had a California area code, or Defendant's records identified the class member as living in California; and (2) Preliminary injunction order restraining Defendant from using its dialer to place calls to cell ...
The phrases “artificial” and “pre-recorded voices” are self-explanatory — for example, an artificial voice is a computer generated voice, and a pre-recorded voice is simply a pre-recorded message that an individual would hear when answering a call. The TCPA defines Automatic Telephone Dialing Systems (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 numbers. ATDS have also been described as including: (1) predictive dialers, i.e., equipment that eliminates the need for time ...