Months after the ACA International decision from the D.C. Circuit 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 remain split on what constitutes an ATDS—although the flurry of ACA-related activity in the courts has slowed somewhat in the past few months (which may be the result of the recent government shutdown)—and the FCC has not issued any new guidance on the topic, thus leaving the TCPA litigation world in a state of confusion. 

Notably, we have still only had appellate-level opinions from the Second CircuitThird Circuit and Ninth Circuit. About half of the reported district court cases we have reported on have found that there was an ATDS when applying ACA, while only about one-third have held that ACA invalidated all prior FCC orders defining an ATDS or that human intervention was a deciding factor as opposed to just the 2015 order discussed in ACA. There still have been no district- or appellate-level cases defining an ATDS since ACA from the First Circuit, the Fourth Circuit and, most notably, the Fifth Circuit, and there have been surprisingly very few district court opinions from the Seventh Circuit considering the volume of TCPA cases filed there. The district courts in the Second Circuit and Ninth Circuit have led the way, along with the district courts in the Eleventh Circuit, for some reason, where there has been no appellate opinion post-ACA.

As part of our continuing coverage in this area, Manatt’s TCPA team will monitor and report on 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 Tenth Circuit and one district court case from the Second Circuit have interpreted whether a device constitutes an ATDS under post-ACA Int’l standards. There have been no significant developments at the appellate level thus far after the Ninth Circuit's opinion in Marks v. Crunch San Diegocame out—although there were indications that Marks might go up to the Supreme Court on appeal but ultimately did not—and the recent government shutdown effectively halted FCC developments on this front. An update on Marks and summary of the district court cases follow:

Update on Marks: Many had hoped that the Marks v. Crunch San Diego, LLC case from the Ninth Circuit—a decision which has spurred a lot of confusion in the district courts as they wrestle with how to define an ATDS—would go up to the Supreme Court on appeal, but no such luck. In fact, defendant Crunch San Diego, LLC, had petitioned the Supreme Court for certiorari in this case, but on February 21, 2019, the parties filed a notice of settlement. This settlement, therefore, prevents the Supreme Court from resolving the ongoing confusion by determining whether Crunch’s platform used to send promotional text messages to cellphones constitutes an ATDS where it “stores numbers and dials them automatically to send text messages to a stored list of phone numbers.” Consequently, the Marks ruling remains binding on courts in the Ninth Circuit, thus continuing the split of opinion between the Ninth Circuit on the one hand and the Second Circuit and the Third Circuiton the other, and with district courts in between not knowing for sure which way to lean (in some instances, district courts in the same circuit arguably have both adopted and rejected Marks). Additionally, other circuits—such as the Seventh Circuit, which after the Ninth Circuit has the second-highest volume of TCPA cases at the federal level nationally—have not yet weighed in on the parameters of the definition of an ATDS. Manatt’s TCPA team will continue to monitor the situation in the Ninth Circuit, and hopefully, other circuits or the FCC will weigh in soon and help break up this split.

Duran v. La Boom Disco, Inc., No. 17CV6331ARRCLP, 2019 WL 959664 (E.D.N.Y. Feb. 25, 2019). In the Eastern District of New York, Judge Ross traced the developing confusion over what constitutes an ATDS since the D.C. Circuit’s decision in ACA Int’l. Here, the plaintiff alleged that hundreds of text messages he received from a nightclub violated the TCPA. The defendant used the ExpressText and EZ Texting programs, the same ones addressed by the Southern District of Florida in Ramos v. Hopele of Fort Lauderdale, LLC, which we previously reported on. The court determined that ACA Int’l invalidated only the FCC’s 2015 Opinion and not all prior opinions of the FCC, thus holding that equipment can meet the definition of an ATDS if it pulls from a list of numbers, rather than generates numbers sequentially or randomly, but only if the equipment has the capacity to dial those numbers without human intervention. The court found that the EZ Texting program was not capable of dialing numbers without human intervention, as a user determines the time at which the ExpressText and EZ Texting programs send out messages. Thus, the programs did not constitute an ATDS and the court denied summary judgment for the plaintiff and sua sponte granted summary judgment for the defendant.  

To read the full decision in Duran v. La Boom Disco, click here.

Might v. Capital One Bank (USA), N.A., No. CIV-18-716-R, 2019 WL 544955 (W.D. Okla. Feb. 11, 2019). In the Western District of Oklahoma, Judge Russell denied the defendant’s motion to dismiss, holding that, as a matter of law, he could not say that the plaintiff’s claims were not plausible with regard to the capacity for any dialing system used by the defendant to contact the plaintiff. The parties’ dispute concerned whether a predictive dialer that calls telephone numbers from a stored list of numbers, rather than having generated those numbers randomly or sequentially, could constitute an ATDS under the TCPA. The court referred to the Second Circuit’s King v. Time Warner Cable Inc. opinion, which distinguished between a device that currently has the capacity to perform as an ATDS and a device that can perform those features only if additional functions are added. Therefore, the court found that the critical question is whether the calls at issue were the product of a machine that was capable at that time of generating random and sequential numbers, not whether the calls to the plaintiff were the result of such a machine. The court in denying the motion to dismiss concurred with other courts that have found sufficient allegations where a plaintiff pleads a large number of calls or some other indicia of an ATDS and that the defendant used an ATDS. Lastly, the court determined that the issue of whether an ATDS was used is best left for summary judgment.

To read the full decision in Might v. Capital One 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
  • 28 cases say only some/part of FCC orders invalidated

Case Law by Circuit

  • 0 cases from the 1st Circuit district courts
  • 14 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
  • 2 cases 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

  • 19 cases where autodialer found
  • 19 cases where autodialer not found
  • 10 cases where human intervention was a deciding factor in determining that system was not ATDS