Nearly a year after the D.C. Circuit’s ACA International decision changed the face of litigation in the Telephone Consumer Protection Act (TCPA) world by striking down the Federal Communication Commission’s (FCC) 2015 automatic telephone dialing system (ATDS) guidance, courts still remain split on what constitutes an ATDS. The more recent Marks v. Crunch San Diego, LLC case from the Ninth Circuit spurred additional confusion when it held that a device can be an autodialer even if it is unable to generate random or sequential numbers, so long as it can store numbers to be called and dial such numbers, a definition which would seem to encompass all smartphones, in contravention of the ACA Int’l decision. Defendant Crunch San Diego, LLC, has now petitioned the Supreme Court for certiorari in this case. As part of our continuing coverage in this area, Manatt’s TCPA team will monitor and report on developments in Marks as well as significant developments at the FCC, and on noteworthy (i.e., dispositive or class certification-related) federal district- and appellate-level decisions interpreting, applying or otherwise evaluating ACA Int’l in ways that may impact our readers.

Recently, one district court case from the Second Circuit, two district court cases from the Third Circuit, one district court case from the Eighth Circuit and one district court case from the Tenth Circuit (notably, the first from that circuit) have interpreted whether various dialing systems constitute an ATDS under post-ACA Int’l standards. There have been no new developments at the appellate level thus far after the Ninth Circuit’s opinion in Marks, and the recent government shutdown effectively halted FCC developments on this front. A summary of the district court cases follows:

David Battaglia v. Quicken Loans, Inc., No. 18-CV-1104, 2019 WL 430042 (W.D.N.Y. Feb. 4, 2019). The Western District of New York denied Quicken Loans’ motion to dismiss for failure to state a TCPA claim where plaintiff alleged that Quicken Loans called his cellphone without his consent using an ATDS and left voicemails using an automated message. Judge Vilardo defined 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, citing ACA Int’l. The court found that a plaintiff satisfies his burden where he specifically alleged text messages with generic content as well as voicemails with automated messages asking him to press a button to speak with a representative. Further, the court stated that it would be unreasonable to hold plaintiffs accountable for detailing defendants’ calling technology at the pleading stage.

To read the entire decision in David Battaglia v. Quicken Loans, Inc., click here.

Richardson v. Verde Energy United States, No. 15-6325, 2018 U.S. Dist. LEXIS 212558, (E.D. Pa. Dec. 14, 2018). Judge Beetlestone granted in part and denied in part summary judgment for defendant on the issue of whether the CallShaper Predictive Dialer constitutes an ATDS. First, the court interpreted ACA Int’l and stated that “[a] careful parsing of ACA [Int’l] indicates that the invalidation of the 2015 Order necessarily invalidated the 2003 and 2008 Orders as well.” The dialer can load lists of leads to be called and subsequently call those numbers. The court followed the Third Circuit’s opinion in Dominguez and held that a predictive dialer that merely dials numbers from a stored list is not an ATDS because it does not randomly or sequentially generate numbers.

To read the entire decision in Richardson v. Verde Energy United States, click here.

Collins v. National Student Loan Program, 2018 WL 6696168 (D. N.J. Dec. 20, 2018). In yet another win for LiveVox HCI, Judge Bumb granted defendant’s motion for summary judgment and denied plaintiff’s motion for summary judgment on the issue of whether defendant’s LiveVox Human Call Initiator system constituted an ATDS. Judge Bumb held that the system did not have the “present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.” The court stated that defendant initiated calls to plaintiff’s cellphone using this system, which was purportedly designed to involve human intervention, and that plaintiff failed to provide evidence of the system’s present capacity to autodial calls without modifications to the system.

To read the entire decision in Collins v. National Student Loan Programclick here.

Asher v. Quicken Loans, Inc., No. 2:17-CV-1203, 2019 WL 131854 (D. Utah Jan. 8, 2019). The District of Utah, the first court in the Tenth Circuit to rule on the definition of an ATDS, granted defendant’s motion to dismiss the complaint without prejudice for failure to provide the minimum requisite notice under Fed. R. Civ. P. 8. Judge Parrish did, however, also opine on the definition of an ATDS, finding that ACA Int’l invalidated FCC guidance that had deemed certain dialers to constitute ATDSs that did not meet the statutory definition, but that plaintiff, at the pleading stage, adequately alleged the use of an ATDS. The court stated that plaintiff alleged that he received unconsented calls that indicate the use of an ATDS, and without discovery he had no way to learn whether the system that called him had the capacity to generate random or sequential numbers.

To read the entire decision in Asher v. Quicken Loans, Inc. click here.

Harbach v. USAA Federal Savings Bank, No. 15-CV-2098-CJW-KEM, 2019 WL 148711 (N.D. Iowa Jan. 9, 2019). In Harbach, Judge Williams granted summary judgment for the defendant on the issue of whether the Aspect Unified IP, Model No. 7.3 and/or the Aspect Initiated Contact Systems constitute an ATDS. The court stated that a device meets the definition of an ATDS only when it is capable of randomly or sequentially producing, or randomly or sequentially storing, telephone numbers. Here, the Aspect Dialer is incapable of randomly generating numbers for dialing because it allows a user to manually dial phone numbers or it may be configured to automatically dial numbers from a stored list.

To read the entire decision in Harbach v. USAA Federal Savings Bank click here.

A Numerical Overview of Post-ACA Int’l Cases

At the time of publication of this edition of the TCPA Connect, the overall landscape of post-ACA Int’l case law breaks down as follows:

Case Law by FCC Order Validity

  • 9 cases say all FCC orders invalidated
  • 27 cases say only some/part of FCC orders invalidated

Case Law by Circuit

  • 0 cases from the 1st Circuit district courts
  • 13 cases from the 2d Circuit district courts and 1 from the 2d Circuit
  • 6 cases from the 3d Circuit district courts and 1 from the 3d Circuit
  • 0 cases from the 4th Circuit district courts
  • 0 cases from the 5th Circuit district courts
  • 5 cases from the 6th Circuit district courts
  • 3 cases from the 7th Circuit district courts
  • 2 cases from the 8th Circuit district courts
  • 10 cases from the 9th Circuit district courts and 1 from the 9th Circuit
  • 1 case from the 10th Circuit district courts
  • 9 cases from the 11th Circuit district courts

Case Law by Appellate Level

  • 3 appellate-level cases (2d, 3d, 9th Circuits)

Case Law by Autodialer Decision

  • 18 cases where autodialer was found
  • 18 cases where autodialer was not found
  • 9 cases where human intervention was a deciding factor in determining that system was not an ATDS