Showing 13 posts in Telephone Consumer Protection Act.

La Boom! Second Circuit Detonates Expanding Circuit Split over Auto-Dialer Definition Under TCPA

April 9, 2020 by Fernando C. Rivera-Maissonet

Hinshaw continues to monitor the deepening circuit split over what constitutes an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), which restricts certain automated calls and text messages. To say there has been substantial debate by the courts and FCC concerning what constitutes an ATDS would be putting it lightly. And, just when it seemed a majority position was emerging, the playing field seems to have leveled with the Second Circuit's decision in Duran v. La Boom Disco, Inc. More ›

Circuit Split Created as Eleventh and Seventh Circuits Narrowly Interpret Definition of Auto-Dialer Under the TCPA

February 27, 2020 by Barbara Fernandez

We now have a split among federal circuits regarding the definition of an automatic telephone dialing system (ATDS), under the Telephone Consumer Protection Act (TCPA), which limits automated calls and text messages. What constitutes an ATDS has been debated both by the FCC and courts for quite some time. In 2008 and 2015, the FCC found that all predictive dialers were automated telephone dialing systems under the TCPA. In Marks v. Crunch San Diego in 2018, the Ninth Circuit, held that the TCPA applies to devices with the capacity to automatically dial telephone numbers from a stored list or devices that dial telephone numbers produced from a random or sequential number generator. Now, in Glasser v. Hilton Grand Vacations and Gadelhak v. AT&T Services, Inc., the Eleventh and Seventh Circuits have taken the opposite approach and found that an ATDS only includes equipment that dials randomly or sequentially. More ›

Lack of Standing Is Not Dead as a Defense to TCPA Actions

October 7, 2019 by Joseph D. Kern

The Eleventh Circuit, in Salcedo v. Hanna, has concluded that receipt of a single unsolicited text, allegedly sent in violation of the Telephone Consumer Protection Act (the "TCPA"), does not constitute a sufficient "concrete injury" to confer standing under Article III of the United States Constitution. More ›

Emerging Trend: Another Federal Court Finds that Predictive Dialers Fall Outside the TCPA's Definition of an ATDS

August 19, 2019 by Hinshaw & Culbertson LLP

In 2018, the D.C. Court of Appeals issued ACA International, et al. v. FCC that set aside key determinations of the FCC's interpretations of what qualifies as an automated telephone dialer service (ATDS). The D.C. Circuit concluded that the focus of the Telephone Consumer Protection Act's (TCPA) definition of an ATDS should be on the device's "present capacity" to store and produce telephone numbers, as opposed to its "potential functionalities" or "future possibility." Since this decision, courts have remained split as to what qualifies as an ATDS, although there is a growing trend of courts concluding that a predictive dialer is not an ATDS unless it has the present capacity to store and produce phone numbers randomly and sequentially. On July 30, 2019, the Northern District of Texas joined that trend with its decision in Adams v. Safe Home Security Inc. More ›

U.S. Supreme Court Balks on Judicial Deference to FCC in TCPA Case, While Concurrence Led by Justice Kavanaugh Looks to Swing

June 25, 2019 by John P. Ryan

TCPA litigators have been closely monitoring the U.S. Supreme Court's docket waiting for a ruling in the PDR Network case. At stake is what kind of judicial deference should be given to the FCC's interpretation of the Telephone Consumer Protection Act (TCPA). Specifically, the Court was set to decide whether the Hobbs Act required the District Court to accept the FCC's legal interpretation of the TCPA. Numerous decisions at both the District Court and Circuit levels have held that trial courts have no discretion to review an FCC order interpreting the TCPA, meaning that courts must provide these orders complete deference. More ›

"Estoppel on Steroids" ‒ Does the Hobbs Act Require the District Court to Accept the FCC's Rule Interpreting an "Unsolicited Advertisement" under the TCPA?

March 26, 2019 by Hinshaw & Culbertson LLP

Yesterday, the United States Supreme Court heard oral argument on appeal from the Fourth Circuit's decision issued in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. The issue is whether a district court must accept the Federal Communication Commission's (FCC) rule interpreting an "unsolicited advertisement" under the Telephone Consumer Protection Act (TCPA). The district court held that PDR Network, LLC did not violate the TCPA when it faxed an unsolicited advertisement to Carlton & Harris Chiropractic for a free Physicians' Desk Reference. In doing so, the district court declined to apply the FCC's 2006 rule that interpreted an unsolicited advertisement under the TCPA to include fax messages that promote goods or services at no cost. On appeal, however, the Fourth Circuit reversed concluding that the district court should have applied the FCC's rule because the Hobbs Act, which establishes judicial review for final orders of certain federal agencies, requires a party to first challenge an agency rule with the respective agency before challenging the rule in court. The Supreme Court is left to decide whether the district court has authority to hear PDR's challenge to the FCC's rule in its defense of this TCPA lawsuit without any prior agency challenge. More ›

ACA International Continues Setting Precedent Regarding Autodialers: Second and Third Circuits Follow Suit in Adopting a Narrowed Definition

July 11, 2018 by Hinshaw & Culbertson LLP

The Second Circuit, in King v. Time Warner Cable, Inc., and the Third Circuit, in Dominguez v. Yahoo!, Inc., relied upon the D.C. Circuit's decision in ACA International v. FCC in limiting the definition of an autodialer under the Telephone Consumer Protection Act. Dominguez found that Yahoo's text message system did not fit the definition of autodialer, while King emphasized that only a device that currently has the ability to perform autodialing functions can qualify as an autodialer system. More ›

TCPA Developments: Consumer's Attempt to Revoke Consent to Text Messages Found to be Unreasonable

May 1, 2018 by Hinshaw & Culbertson LLP

In Nicole Rando v. Edible Arrangements, International, LLC, a consumer sued Edible Arrangements under the Telephone Consumer Protection Act (TCPA) arguing that the company sent her text messages after she had revoked her consent. The New Jersey federal court granted Edible's Motion to Dismiss, finding that the consumer's revocation was not "reasonable." The consumer was prompted to text "STOP" if she wished to revoke her consent, but the consumer responded instead with long sentences such as "Thank you. I'd like my contact info removed" or "I asked to be removed from this service a few times. Stop the messages." More ›

Distilling the DC Circuit's TCPA Decision in ACA International v. FCC

March 16, 2018 by Concepcion A. Montoya

In a case we have been tracking closely, a unanimous panel of the D.C. Court of Appeals set aside two key determinations of the FCC's interpretations of the Telephone Consumer Protection Act. In ACA International, et al. v. FCC, Judge Sri Srinivasan found that the FCC's "explanation of what qualifies" as an automated telephone dialer service (ATDS) and its one-call safe harbor for calling a phone number that has been reassigned to a non-consenting person was arbitrary and capricious. However, the Court sustained the FCC's rulings on revocation of consent "through any reasonable means clearly expressing a desire to receive no further messages" and the scope of the exemption for "time-sensitive healthcare calls." More ›

Third Circuit Rules that a Single Voicemail on a Cell Phone is Sufficient to Confer Standing for a TCPA Claim

July 20, 2017 by Concepcion A. Montoya

In another court's journey into the murky waters of constitutional standing post-Spokeo, the Third Circuit Court of Appeals concluded that one single voicemail on a consumer's cell phone is sufficient to confer standing under the Telephone Consumer Protection Act (TCPA). In Sussino v. Work Out World, Inc., the plaintiff alleged that she received an unsolicited call on her cell phone from Work Out World (WOW). When she did not answer, WOW left a prerecorded promotional offer lasting more than one minute on her voicemail. WOW moved to dismiss for lack of standing under Article III. The district court granted WOW's motion on the grounds that a single solicitation was not "the type of case that Congress was trying to protect people against," and in any event, the call and voicemail did not cause a concrete injury. Sussino appealed. More ›

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