Second Circuit Weighs in on Definition of TCPA Autodialer
On April 7, 2020, the Second Circuit further muddied the Telephone Consumer Protection Act “automatic telephone dialing system” definition debate.
In Duran v. LaBoom Disco, Inc., the Second Circuit split from recent Seventh and Eleventh Circuit decisions that aligned with the statutory language in requiring “random and sequential number generation.” Here, the Second Circuit held that, as long as other statutory requirements are satisfied, the capacity to automatically dial from a stored list qualifies as an ATDS. The Second Circuit also held that clicking “send” to initiate a text message campaign is not “enough human intervention to turn an automatic dialing system into a non-automatic one.”
The decision provides support to the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, a crushing blow to telemarketers that hoped for a narrow interpretation of the definition of an ATDS.
The Duran case began at the district court level in the Eastern District of New York. There, the court held that the text message systems defendant used were not an ATDS because they required human intervention. Plaintiff asserted that the text message platforms were an ATDS because users were not required to “click” before each text messages was sent, but rather users could simply direct the text message platform to send thousands of text messages at a time. The lower court disagreed, finding that “the human intervention test turns not on whether the user must send each individual message, but rather on whether the user (not the software) determines the time at which the numbers are dialed.” The district court also held that “equipment can meet the definition of an autodialer if it pulls from a list, so long as the equipment also has the capacity to dial those numbers without human intervention.”
The decision was appealed. On appeal, the Second Circuit acknowledged that a “simple definitional question” regarding the meaning of ATDS “pervades TCPA litigation,” provided background on the text messages at issue, and analyzed the definition of an ATDS.
The Eleventh and Seventh Circuits have focused on the phrase “random or sequential number generator” and have determined that the phrase modifies both “to store” and “to produce,” Here, however, the Second Circuit focused on the word “capacity” in the statutory language. Thus, the Second Circuit stated that a telephone system must have the “capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator” and the “capacity . . . to dial such numbers.”
In terms of the meaning of “random or sequential number generation,” the court considered different interpretations from the Seventh and Eleventh Circuits, as well as the Ninth Circuit. In an effort to maintain a deterrent effect on telemarketers, it concluded, without limitation, that the TCPA requires that an ATDS encompass systems that dial from a stored list.
In terms of human intervention, the court acknowledged that all telephones “will always require some human intervention somewhere along the way.” The Court considered “how much human intervention is too much for a system to qualify as an ATDS.” The opinion focuses upon what “dial” means, and that clicking “send” in a text messaging program is probably not the same thing as dialing a telephone number.
Given the widening circuit splits on the issue of what constitutes an ATDS, Supreme Court review is looking more and more likely.
Other Noteworthy TCPA Legal Developments
The Southern District of Florida recently dismissed a TCPA putative class action for lack of standing, finding that the plaintiff could not show he suffered a concrete injury-in-fact. In Eldridge v. Pet Supermarket Inc., the court held that even if the texts received over three month period were unconsented advertisements or telemarketing, the number and infrequency of the text messages were insufficient to support plaintiff’s loss of privacy, waste of time and intrusion upon seclusion allegations and that he failed to show by a preponderance of the evidence that the texts depleted his cell phone battery or negatively impacted his data and messaging plan.
The decision deepens the circuit split regarding the level of harm required to sustain a TCPA claim based on the receipt of text messages.
Richard B. Newman is a TCPA attorney at Hinch Newman LLP. Follow him on National Law Review at FTC lawyer.
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