On April 1, 2021 the United States Supreme Court issued a critical ruling interpreting the TCPA’s ATDS definition.
Above is a redline of the ATDS definition following Facebook.
Below are key resources to help you understand and apply the decision.*
TCPAWorld Written Analysis
- Breaking news piece on April 1, 2021
- Original analysis piece on April 1, 2021
- Further analysis on April 1, 2021
- Original response of Plaintiff’s Bar to Facebook
- Original Congressional response to Facebook
- Analysis of Facebook concurrence
- Czar’s prediction on slow Congressional response
- Visual renderings of TCPA ATDS definitions post-Facebook
Video Format Webinars and Discussion
- Original discussion with LeadsCouncil
- Original webinar breakdown of Facebook
- Masterclass on SMS and Express Consent post-Facebook
Technology Risk Levels Post-Facebook
ATDS Caselaw Since Facebook — Updated July 14, 2021
- Montanez v. Future Vision Brain Bank, Civil Action No. 20-cv-02959-CMA-MEH, 2021 U.S. Dist. LEXIS 67091 (D. Col. April 7, 2021)(allowing ATDS allegations to survive the pleadings stage);
- McEwen v. Nra of Am. & Infocision, No. 2:20-cv-00153-LEN, 2021 U.S. Dist. LEXISUnited (D. Me. April 14, 2021)(ruling ATDS must make “use” of R&SNG, not just have capacity to do so);
- Camunas v. Nat’l Republican Senatorial Comm., CIVIL ACTION NO. 21-1005, 2021 U.S. Dist. LEXIS 100125 (E.D. Pa. May 26, 2021)(allegations system “calls phone numbers from a stored list using a random or sequential number generator to select those phone numbers” were insufficient to state a claim without more);
- Barnett v. Bank of Am., N.A., 2021 U.S. Dist. LEXIS 101171 (W.D.N.C. May 28, 2021)(Predictive dialer not an ATDS due to lack of evidence of r&sng);
- Timms v. Usaa Fed. Sav. Bank, C/A No. 3:18-cv-01495-SAL, 2021 U.S. Dist. LEXIS 108083 (D.S.C. June 9, 2021)(Aspect predictive dialer not an ATDS. No evidence of R&SNG usage. fn7 limited to circumstances where R&SNG used to determine number sequence);
- Carl v. First Nat’l Bank of Omaha, Docket no. 2:19-cv-00504-GZS, 2021 U.S. Dist. LEXIS 111889 (D Me. June 15, 2021)(LiveVox dialing system may be an ATDS even post-Facebook due to FN 7);
- Atkinson v. Pro Custom Solar Lcc, CIVIL NO. SA-21-CV-178-OLG, 2021 U.S. Dist. LEXIS 112396 (W.D. Tex. June 16, 2021)(ATDS allegations survive the pleadings stage where present use of R&SNG to determine dial sequence alleged);
- Watts v. Emergency Twenty Four, No. 20-cv-1820, 2021 U.S. Dist. LEXIS 115053 (N.D. Ill. June 21, 2021)(Motion to dismiss granted where allegations demonstrated calls at issue were triggered by alarms and not called as a result of an R&SNG);
- Hufnus v DoNotPay, Case No. 20-cv-08701, Doc. No. __ (N.D. Cal. June 24, 2021)(System that called from list of customers not an ATDS because list was not randomly dialed; FN7 only applies where random numbers are called);
- Gross v. Gg Homes, Case No. 3:21-cv-00271-DMS-BGS, 2021 U.S. Dist. LEXIS 127596 (S.D. Cal. July 8, 2021)(Court holds Facebook irrelevant at pleadings stage; holds allegations of automatic template texts sufficient to state a claim);
- Callier, EP-20-CV-00304-KC, 2021 U.S. Dist. LEXIS 126769 (W.D. Tex. May 10, 2021)(allegations of a pause upon receipt of unsolicited calls sufficient to state ATDS claim post-Facebook);
- Barry v. Ally Fin., Case No. 20-12378, 2021 U.S. Dist. LEXIS 129573 (E.D. Mich. July 13, 2021)(Motion to dismiss granted as to targeted collection calls. Facebook requires usage of R&SNG, not just capacity. FN7 only applies to lists of random numbers);
- Miles v. Medicredit, Case No. 20-cv-01186, Doc. No. 53 (E.D. Mo. July 14, 2021)(Following Gross and holding that Facebook not pertinent at pleadings stage).
*Not legal advice. Consult a lawyer before deploying any new consumer outreach strategy.