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 ...
Elizabeth Panzarella v. Navient Solutions, LLC, No. 18-3735, 2020 WL 3250508 (E.D. Pa. June 16, 2020)
Two Plaintiffs filed suit relating to calls Defendant made when a relative’s loan became delinquent. Defendant moved for summary judgment on Plaintiffs’ Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) claims, arguing that the calls were not made using an Automatic Telephone Dialing System (“ATDS”). The TCPA prohibits, in part, calls to a person’s cell phone using an ATDS without their prior express consent. The TCPA defines an ATDS as “equipment that ...
Whittaker v All Reverse Mortgage Inc.. No. CV 20-08016-PCT-DLR, 2020 WL 28229785 (D. Ariz. May 29, 2020)
Plaintiff filed a putative class action, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, (TCPA) by placing calls and sending text messages using an Automatic Telephone Dialing System (ATDS). Defendant moved to stay the case pending a ruling by the United States Supreme Court in the case of Barr v AAPC, 140 S.Ct. 812 (Jan. 10, 2020). Plaintiff opposed the Motion, arguing that the decision in AAPC was irrelevant to the merits of the instance case and that ...
Medley v. Dish Network, LLC, No. 8:16-cv-02534-CEH-CPT (11th Cir. May 1, 2020).
Plaintiff entered into a contract, providing her cell phone number and expressly authorizing Defendant “to contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system.” Plaintiff’s counsel sent Defendant three faxes noting the Telephone Consumer Protection Act’s (TCPA) prohibition again making any call to their client using an automatic telephone ...
A .pdf copy of the Glasser opinion can be found here.
The Telephone Consumer Protection Act (“TCPA” or the “Act”) has limited telephone calls that can be placed using certain automated equipment since 1991. However, since passage of the Act there has been considerable debate about the type of automated equipment subject to the Act’s restrictions. The TCPA specifically restricts the use of any “automated telephone dialing system” ("ATDS"). The statute defines ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called using a ...
Last month, in Duguid v. Facebook, Inc., 17-15320, 2019 WL 2454853 (9th Cir. June 13, 2019), the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) held that the debt collection exception to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), violates the First Amendment because it is content-based and fails to pass strict scrutiny review. Duguid is not a Facebook user and did not consent to be contacted by Facebook. Duguid alleged that Facebook violated the TCPA in 2014 by sending text message notifications to his cell phone ...
Reassigned NumbersSteward v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018)
By: Joshua H. Threadcraft
Plaintiff filed suit alleging Defendant violated the TCPA by calling his recently assigned cell phone number 140 times to collect debt from another, including leaving 4 prerecorded messages. Defendant moved for summary judgment arguing that: (1) Its phone system was not an Automatic Telephone Dialing System (ATDS); and (2) It was reasonable to rely on consent from the previous subscriber when calling Plaintiff.
With respect to the first ...
Gaza v. Auto Glass America, LLC, No. 8:17-cv-1811-T-27AEP, 2018 WL 5775915 (M.D. Fla. Nov. 2, 2018)
Plaintiff alleged that he received five text messages, asserting claims for violation of the TCPA. Defendant moved for summary judgment, contending Plaintiff failed to produce evidence establishing that an ATDS was used to send the text messages. The Court began its analysis, noting that to succeed on his claim, Plaintiff must establish Defendant sent the text messages using an ATDS and that "[t]he essential function of an ATDS is 'the capacity to dial numbers without human ...
In Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065 (M.D. Fla. Sept. 5, 2018), the Middle District of Florida determined that the D.C. Circuit's opinion in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter "ACA"], vacated the Federal Communications Commission's ("FCC") 2003, 2008, and 2015 Orders interpreting the definition of an automatic telephone dialing system ("ATDS").
The plaintiff, Wilfredo Gonzalez ("Plaintiff"), alleged that Ocwen Loan Servicing, LLC ("Ocwen") used an ATDS to place approximately 500 calls to his ...
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 ...
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 ...
Coatney v. Synchrony Bank, No. 6:16-cv-389-Orl-22TBS (M.D. Fla. Aug. 2, 2011), Ricks v. Allied Interstate, LLC, No. 3:16-cv-00205-HES-PBD (M.D. Fla. July 11, 2016)
In two recently published cases, the U.S. District Court for the Middle District of Florida stayed proceedings pending the outcome of ACA International v. Federal Communications Commission, which challenges the FCC's July 10, 2015, Declaratory Ruling. The basis for both Motions to Stay was the fact that the ACA appeal bears directly on the what constitutes an Automatic Telephone Dialing System (ATDS). As the Court in ...
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 ...
Plaintiff completed a credit application to purchase computers, which required her to provide a home phone number. Plaintiff listed her cell phone number but did not identify it as her cell phone number or indicate Defendant could use an Automatic Telephone Dialing System (ATDS) to call the number. After purchasing several thousand dollars in computer equipment, Defendant began using an ATDS to call Plaintiff, leaving pre-recorded messages on her voicemail concerning debt owed. Thereafter, Plaintiff, sent Defendant a letter asking that the calls regarding her account stop ...
Ploch v. FirstSource Advantage, LLC, No. 4:12-cv-310-JAR, 2012 WL 538476 (E.D. Mo. Nov. 1, 2012) Defendant moved for summary judgment on Plaintiff's claim for violation of the TCPA, contending that Plaintiff could not adduce any evidence that it used an Automatic Telephone Dialing System (ATDS) to call Plaintiff's cell phone, and did not leave any prerecorded message on Plaintiff's cell phone. Defendant submitted a declaration from its Dialer Operations Manager stating that Defendant did not place any calls to Plaintiff's cell phone using an ATDS, and all calls were made through ...
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 ...
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 ...
The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is a federal statute that was enacted in 1991 to address concerns relating to telemarketing/solicitation practices. It amended the Communications Act of 1934, and has been characterized by Manuel H. Newberger, in FDCPA Updated On The TCPA, Time-Barred Debt and Voice Mail Messages, as “one of the new weapons of choice of those suing debt collectors.” But it has far broader application. For example, it has entangled not only debt collectors but also other businesses ranging from local businesses to national banks and ...