Text – TCPA Watch

In Wake of ACA Int’l, Ninth Circuit Adopts Expansive Definition of ATDS

Oct 05 2018

By: Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

The U.S. Court of Appeals for the Ninth Circuit recently adopted an expansive definition of the term “automatic telephone dialing system” (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). In Marks v. Crunch San Diego LLC, the panel held that, in light of ACA Int’l, the U.S. Court of Appeals for the D.C. Circuit’s landmark decision interpreting certain provisions within the TCPA (previously discussed here) and based on the panel’s own review of the TCPA, the statutory definition of an ATDS includes devices that store telephone numbers to be called, whether or not the device has the ability to generate numbers randomly or sequentially. In so holding, the Ninth Circuit splits from a number of other decisions holding that an essential element of an ATDS is the capacity to generate random or sequential numbers.

The TCPA defines 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.” In ACA Int’l, in brief, the D.C. Circuit invalidated the Federal Communications Commission (“FCC”)’s interpretation of two key questions raised by the statutory definition of an ATDS, namely “(i) when does a device have the ‘capacity’ to perform the two enumerated functions; and (ii) what precisely are those functions?” In so doing, the D.C. Circuit created uncertainty as to what features or attributes of a dialing system would bring it within the scope of the ATDS definition.

Plaintiff Jordan Marks filed suit against Crunch San Diego LLC (“Crunch”) after he joined the gym and received three text messages over a period of eleven months. Crunch utilized a system called Textmunication. In this system, phone numbers are captured and stored in one of three ways: an operator of the system can manually enter a phone number into the system; a current or potential customer may respond to a marketing campaign with a text; or a customer may provide a phone number by filling out a consent form on a Textmunication client’s website. A client of Textmunication can then design a marketing campaign and Textmunication will automatically send the desired messages to the stored phone numbers at a time scheduled by the client. When Crunch wants to send a text through Textmunication, a Crunch employee logs into the system, selects the recipient phone numbers, generates the content of the message, and selects the date and time for the message to be sent. The messages are then automatically sent at the appointed time.

Prior to the decision in ACA Int’l, the district court held that Textmunication was not an ATDS because it lacked the present or potential capacity “to store or produce telephone numbers to be called, using a random or sequential number generator” and granted summary judgment for Crunch. Marks appealed the decision, and following his appeal, ACA Int’l was decided. The Ninth Circuit then reversed, holding that a system could be an ATDS if it has the capacity to store a list of numbers and call those numbers automatically, even if the system does not have the ability to generate random or sequential lists of numbers. In doing so, the Ninth Circuit first reviewed the statutory definition of ATDS as set forth by Congress in 1991 and determined that the provision is ambiguous, and, accordingly, that it was appropriate to look to the context and structure of the statutory scheme. The Ninth Circuit found that Congress intended to regulate devices that make automatic calls, including those devices that make automatic calls from lists of recipients, rather than utilizing a random or sequential number generator. The Ninth Circuit rejected Crunch’s argument that because the system was not fully automatic, it did not qualify as an ATDS, holding that Congress had been clear that it was targeting equipment that could engage in automatic dialing rather than equipment that operated without any human oversight or contact. The Ninth Circuit remanded the matter back to the district court for further proceedings.

In addition to the Ninth Circuit, several other courts have discussed the effect of ACA Int’l on the definition of ATDS:

In Gonzalez v. Ocwen Loan Servicing, LLC, the Court concluded that a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them, but it does include a predictive dialer that has the “present ability” to do so.
In Washington v. Six Continents Hotels, Inc., the Court agreed that ACA Int’l set aside not only the FCC’s 2015 ruling but also the FCC’s historic treatment of which devices qualify as an ATDS. 16-3719, 2018 WL 4092024, at *3 (C.D. Cal. Aug. 24, 2018) The Court then determined that the complaint adequately alleged the use of an ATDS by claiming that the defendant “acquired Plaintiff’s number, stored it in a database connected to its telephonic or computer system . . . [the system] . . . has the capacity to generate random numbers . . . has the capacity to generate sequential numbers . . . [and] has the capacity to store and dial the random or sequential numbers it generates just like it stored and dialed Plaintiff’s number.” Id.
In Heard v. Nationstar Mortg. LLC, the Court held that a system that could and did store customer information for at least 24 hours and did not have the capacity to store or produce telephone numbers to be called using a random or sequential number generator fell within the definition of ATDS. 16-694, 2018 WL 4028116, at *5-6 & n.2 (N.D. Ala. Aug. 23, 2018).
In King v. Time Warner Cable Inc., the Second Circuit determined that qualification as an ATDS was limited to those devices that were “capable at the time of use” of performing the functions of an autodialer, absent any modifications to the device’s hardware or software. 849 F.3d 473, 476–77 (2d Cir. 2018).
In Dominguez ex rel Himself v. Yahoo, Inc., the Court held that, absent any evidence that the device had the capacity to generate random or sequential telephone numbers and dial those numbers, the plaintiff failed to show that the text messaging system was an ATDS in light of ACA Int’l. 894 F.3d 116, 119 (3d Cir. 2018).

Given the split among courts on how to interpret ATDS, uncertainty will continue to prevail until there is additional clarification, either from the Supreme Court or the FCC. The FCC has requested further comment from the public regarding the interpretation of the TCPA in light of this decision.

Court Finds Website Owner Did Not Send Text Messages Initiated by its Users and thus Did Not Violate the TCPA

Mar 22 2018

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Matthew T. Houston

In a recent decision, the U.S. District Court for the Northern District of Illinois found that the host of an automobile website did not violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), by providing its users a platform to send automated text messages regarding car listings. In Serban v. CarGurus, Inc., Case No. 1:16-cv-02531 (N.D. Ill. Mar. 12, 2018), a user of the defendant’s website mistyped her telephone number when attempting to send herself a car listing. In doing so, the user performed a multi-step process—including selecting the “Send to Phone” option, entering the telephone number, and clicking a “Send” button—to generate a text message automatically created by CarGurus based on the car selected. As a result of the mistyped telephone number, the text message was transmitted to the plaintiff rather than the user.

TCPA Class-Action Plaintiff Must Arbitrate Claims

Jan 18 2017

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Matthew T. Houston

The U.S. District Court for the Western District of Washington (“Court”) recently allowed a defendant to enforce the arbitration provision in a TCPA plaintiff’s wireless agreements even though the defendant was not a party to the wireless agreements. The plaintiff in Rahmany, et al. v. T-Mobile USA, Inc., et al., Case No. 2:16-cv-01416-JCC (W.D. Wash.), brought suit against Subway Sandwich Shops, Inc. and the plaintiff’s wireless carrier, alleging that the companies violated the TCPA by sending unsolicited text messages to the plaintiff and a putative class of individuals. Shortly after filing suit, the plaintiff voluntarily dismissed the wireless carrier. Subway, however, sought to enforce the mandatory arbitration clause in the agreement between the plaintiff and his wireless carrier, even though Subway was not a party to that agreement. The clause required the plaintiff to individually arbitrate disputes unless the plaintiff opted out of the provision within 30 days of signing the contract, which the plaintiff had not done.

Courts Continue to Be Skeptical of Professional Plaintiffs in TCPA Cases

Dec 05 2016

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

In a ruling issued on December 1, 2016, the District Court for the Central District of California denied class certification in a Telephone Consumer Protection Act (“TCPA”) case due to the putative class representatives’ status as a so-called professional plaintiff. This ruling continues a trend in which courts have significantly limited the ability of professional plaintiffs to bring TCPA class actions. Courts increasingly view professional plaintiffs’ conduct in inviting the complained-of communications as a basis to challenge these plaintiffs’ standing and rendering them inadequate class representatives.

FCC REITERATES ITS POSITION THAT ROBOTEXTS ARE SUBJECT TO TCPA

Dec 02 2016

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

On November 18, 2016, the Federal Communications Commission’s Enforcement Bureau (“Bureau”) released an Enforcement Advisory clarifying the TCPA’s limits on the use of autodialed text messages, known as “robotexts.” The Bureau confirmed that its rules restricting the use of automatic telephone dialing systems include those that deliver texts in addition to those that place calls. The Bureau also clarified the applicable rules regarding consent, texts to reassigned wireless numbers, advertising texts, and enforcement.

Consistent with prior FCC guidance, the Bureau confirmed that the TCPA prohibits autodialed text messages, unless made with the prior express consent of the called party, to any telephone number assigned to a cell phone or other mobile device unless the robotexts fall into one of three exceptions: (1) texts made for emergency purposes; (2) texts that are free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) texts made solely to collect debts “owed to or guaranteed by the United States.” See 47 U.S.C. § 227(b)(1)(A)(iii). The Bureau confirmed that text messages sent through texting apps, “Internet-to-phone” text messaging, and similar technology meet the statutory definition of an autodialer, and therefore fall within these restrictions.

TRUMP’S CAMPAIGN TO GO IT ALONE ON FIRST AMENDMENT CHALLENGE TO THE TCPA

Nov 23 2016

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, and Michael R. Creta

On Monday, the U.S. Department of Justice (“DOJ”) declined to intervene in Thorne v. Donald J. Trump for President, Inc., 1:16-cv-04603 (N.D. Ill.). As previously discussed here, a class of plaintiffs sued President-Elect Trump’s campaign alleging violations of the Telephone Consumer Protection Act (“TCPA”) in connection with text messages sent during the campaign. In seeking dismissal of the suit, the campaign argued that the TCPA does not pass muster under the First Amendment. Specifically, the campaign asserted that Congress’s November 2015 exemption of calls relating to government debt constitutes “preferential treatment” and qualifies as a “blatant and egregious form of content discrimination.”

The DOJ did not provide a reason for declining to intervene, and the campaign is now faced with the prospect of going it alone in its First Amendment challenge to the TCPA.

AS CAMPAIGN DRAWS TO A CLOSE, TRUMP’S FIRST AMENDMENT CHALLENGE TO THE TCPA CONTINUES ON

Nov 07 2016

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, and Michael R. Creta

Donald Trump’s presidential campaign recently moved to dismiss a Telephone Consumer Protection Act (“TCPA”) claim on First Amendment grounds. Thorne v. Donald J. Trump for President, Inc., 1:16-cv-04603 (N.D. Ill.). The class-action complaint alleged that the campaign violated the TCPA by sending text messages without permission. In response, the campaign argued that the TCPA’s prohibition on the use of automatic telephone dialing systems (“ATDS”) for calls or text messages placed to cellular telephones, 47 U.S. Code § 227(b)(1)(A)(iii) (the “cell phone ban”), improperly regulates speech on the basis of content. Specifically, the campaign asserted that the ban cannot withstand strict scrutiny because it does not “further[] a compelling interest” and is not “narrowly tailored to achieve that interest.” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011).

Wireless Communications Trade Group Opposes FCC Petition Seeking Declaration That Text Messages Are Subject to the FCC’s Open Internet Order

Sep 13 2016

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and
Eric W. Lee

The wireless trade group CTIA–The Wireless Association recently asked the Federal Communications Commission (“FCC”) to reject a petition that asks the agency to declare that text messages fall under the FCC’s Open Internet Order. Twilio, Inc., a cloud-based company that manages and facilitates the sending of automated text messages, filed the petition, which seeks to have the FCC confirm that text messages are telecommunication services subject to Title II of the Communications Act of 1934 and the protections of the Open Internet Order. The petition argues that wireless carriers use imprecise filtering systems to block millions of text messages that people have asked to receive, including critical information from their schools. It also claims that wireless carriers are violating the FCC’s rules under the Telephone Consumer Protection Act, 47 U.S.C. § 227, by blocking text messages without giving consumers a choice or making them aware of the practice.

District Court Finds Social Media Company Is Not “Sender” of Calls Under TCPA

Aug 15 2016

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

A federal court in California recently dismissed a class action accusing mobile application company Life360, Inc. (“Life360”) of violating the TCPA on the grounds that the company could not be liable for texts initiated by app users. The Court found that Life360 was not the “sender” of the texts initiated using its platform and, therefore, could not be held liable under the TCPA, because users—not the application itself—selected when and to whom the texts were sent.

Life360 operates a mobile phone application that allows users to communicate with and see the location of their friends and family. Users of the app who provide Life360 with access to their phone’s contact list can direct the app to “Invite” certain contacts to use the app and share their location and exchange messages with the user. According to the complaint, the user is not instructed on how or when invitations will be sent. Plaintiff Terry Cour alleged that Life360 sent him unwanted texts even though he was not a Life360 user and had never downloaded the app onto any device. Following the receipt of text messages from the app, Cour filed a lawsuit on behalf of himself and a class of persons similarly situated, alleging that Life360’s texts violated the TCPA.

FCC Clarifies TCPA Applicability for Certain Calls from Utilities, Schools

Aug 11 2016

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

On August 4, 2016, the Federal Communications Commission (the Commission) released a Declaratory Ruling clarifying the meaning of the “emergency purpose” exception to the Telephone Consumer Protection Act’s (TCPA) prohibition on certain autodialed or prerecorded-voice calls. The Commission also found that the voluntary provision of cellphone numbers to schools or utilities constituted prior express consent to calls “closely related to” the educational and utility services offered by the callers.

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