A guy in prison may have just changed the course of TCPAWorld history.
So the TCPA’s ATDS definition has been the subject of endless debate and machinations by the courts.
The Supreme Court recently concluded an ATDS is any system with the capacity to either store or produce phone numbers to be dialed using an ROSNG. This is not surprising because that is basically what the statute says.
But the Ninth Circuit and the Second Circuit have held otherwise, concluding– contrary to the Supreme Court– that only systems that produce telephone numbers using an ROSNG are ATDS, systems that only store such numbers using an ATDS are not.
To date these are the only circuit courts of appeal to directly address the issue– although the Third and Eighth circuit also have rulings that touch upon the issue, and also divergently.
Now along comes a guy named Antonio L. Fluker, Jr., who is apparently incarcerated for wire fraud and money laundering. While in jail he is hanging out suing people under the TCPA– that reminds me, you NEED to watch our webinar next week on lawsuit abuse!–and claims to have receive over 800 illegal calls from Ally Financial.
He sued Ally seeking over $1MM in damages but the district court throughout the case concluding Plaintiff had failed to allege facts showing Ally had used an ATDS or prerecorded voice.
On appeal the Court agreed with the district court that allegations were missing but, importantly, DID NOT define ATDS to include only systems that create telephone numbers randomly. Instead it correctly looked at systems that either store or produce telephone numbers to be dialed:
The statutory term “automatic telephone dialing system” refers to a machine that has the ability “to store or produce telephone numbers to be called, using a random or sequential number generator,” and can dial these generated numbers. Id. § 227(a)(1). Still, “the equipment in question must use a random or sequential number generator” to either produce or store the telephone numbers. Facebook, Inc. v. Duguid, 592 U.S. 395, 404 (2021).
Ruh roh.
While the Sixth Circuit Court of Appeals is undoubtedly correct this ruling also undoubtedly conflicts with the Second and Ninth Circuit who have held otherwise– again, in their formulation only systems that produce telephone numbers to be dialed using an ROSNG qualify.
Still this is just a pleadings stage ruling and not a full inquiry based on facts and evidence so future Sixth Circuit panels may diverge, perhaps, but I doubt it. I think the Sixth Circuit has just staked its position on ATDS in a manner that will make it much more attractive for Plaintiff’s lawyers to pursue ATDS claims.
We’ll see where this leads.
In the meantime, the buzz around Law Conference of Champions is getting nuts. Local news coverage is now in effect. Will be fun to see just how many people show up.
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He received over 800 calls on his cell phone while incarcerated in prison. Gee, in my former life as a corrections administrator, we did not allow our inmates to have cell phones; cell phones were a contraband item. Looks like things have really changed in the last 30+ years.
I’m struggling to see much distinction between the 6th Circuit’s approach and the 2nd & 9th Circuits. This Fluker ruling correctly states the law and the Supreme Court, but then undercuts itself in Footnote 3 by declaring that an ATDS must “create or store random telephone numbers to be called”. (It cites p. 404 of Facebook, which doesn’t support this construction.) The 6th Circuit seems to be falling into the same fallacy as the others, and assuming that a ROSNG isn’t enough to trigger liability – it has to be a random or sequential *telephone* number generator. As you wrote following the 9th Circuit’s Borden ruling, this isn’t quite correct. I think the 6th Circuit got sloppy on this point because the plaintiff presented such an otherwise weak case.