TCPAWorld’s Rolling ATDS Review

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We’ll keep you up to speed on all the breaking ATDS cases across the country. Every time a new ATDS case breaks we’ll be the first to spread the news and keep you updated with this easy to navigate page.

Here’s your TCPAworld ATDS review updated as of July 8, 2020.

Cases Holding Random or Sequential Number Generation is Required for Equipment to Qualify as an ATDS

A number of 2018 decisions—including one from the Third Circuit Court of Appeal— held that random or sequential number generation is required for a device to qualify as an ATDS under the TCPA. See:

Cases Holding Random or Sequential Number Generation is Not Required

The case law departing from the statutory view is fractured.

Duran v. LaBoom Disco

On the one hand are cases following the approach of the recent Second Circuit Court of Appeal decision in Duran v. La Boom Disco, case no. 19-600-cv, (2nd Cir. 2020). These cases hold, in essence, that the FCC’s 2003 and 2008 Predictive Dialer Orders were not set aside by ACA Int’l and that the TCPA’s ATDS definition continues to apply to predictive dialers and other systems that call automatically from a list of numbers.

Cases Following Duran Approach

Marks v. Crunch

Similarly, but distinctly, the Ninth Circuit Court of Appeals decision in Marks v. Crunch holds that the FCC’s 2003 and 2008 Orders are set aside but that the statutory definition does not require random or sequential number generation—instead, Marks holds that a dialer is an ATDS if it has the capacity to store numbers to be called and to dial such numbers automatically (even if the system must be turned on or triggered by a person.)

Cases Following Marks

Notably a few cases also refuse to follow Marks and criticize its reasoning:

At least one other court also determined that dialers that call automatically qualify under the TCPA in 2018 although the reasoning was not particularly clear:

  •  Heard v. Nationstar Mortg. LLC, Case No.: 2:16-cv-00694-MHH, 2018 U.S. Dist. LEXIS 143175 (N.D. Ala. Aug. 23, 2018)(Avaya predictive dialer met the statutory definition of an ATDS regardless of FCC rulings.)

Human Intervention Cases

Following the 2015 TCPA Omnibus ruling a large number of cases focused on human intervention as a way to bring some sanity to the extremely broad ATDS formulation the FCC handed down.

With the 2015 TCPA Omnibus overturned, however, the focus of recent decisions has been on the functionalities an ATDS must perform rather than on human intervention. Nonetheless, with Marks and LaBoom focusing on “automatic” dialing—and with the FCC set to determine whether automated functionalities must actually be “used” to trigger statutory coverage as part of its Public Notice—understanding the role of “human intervention” in the ATDS equation remains a priority.

As in previous years, there is little consistency in court decisions addressing human intervention. As I have written recently, human intervention appears to be in the eye of the beholder to some degree.

For instance, some courts continue to consider human intervention in the process of compiling dialer lists as sufficient to remove equipment from statutory coverage. See:

Not all cases agree, however, and numerous decisions have rejected human intervention as insufficient if it is not employed at the time numbers are dialed. Indeed the Second Circuit Court of Appeal held–as a matter of law–that the same EZ Texting platform at issue in Gaza and Ramos actually is an ATDS, after all. What a mess.

On the other hand, the Eleventh Circuit Court of Appeal has held that a call is made with human intervention anytime a call is made as a result of “an employee’s choice” to initiate each call. 

Whatever else may be sufficient, courts continue to consider “click to dial” systems outside the purview of statutory coverage—perhaps even applying Marks. See:

  • Hatuey v. IC Sys., No. 1:16-cv-12542-DPW, 2018 U.S. Dist. LEXIS 193713 (D. Mass. Nov. 14, 2018)(granting MSJ on ATDS use because – even under the broadest reading of the definition of ATDS – click to dial was not an ATDS.)
  • Maddox v. CBE Grp., Inc., No.: 1:17-cv-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018)(click to dial meets “human intervention test”);
  • Glasser v. Hilton Grand Vacations Co., No. 8:16-cv-952-JDW-AAS, 2018 U.S. Dist. LEXIS 162867 (M.D. Fla. Sep. 24, 2018) (click to dial meets “human intervention” test).