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 February 12, 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

Following Marks there are now two divergent lines of cases holding that random or sequential number generation is not required to prove ATDS usage. The Marks line—which holds the FCC’s 2003 and 2008 Orders are set aside but that the statutory definition does not require random or sequential number generation—and the Bad Reyes line—which holds that the FCC’s 2003 and 2008 Orders remain in Effect.

Marks and its Progeny

Marks was the second most-important TCPA case of the year—second only to ACA Int’l.  In Marks the Ninth Circuit Court of Appeal re-interpreted the definition of ATDS to cover all dialers that call from a list of numbers in automatic fashion. The Court arrived at this conclusion by first determining that the FCC’s previous guidance on the definition of ATDS had been set aside by ACA Int’l. The Court then determined that the TCPA’s statutory definition was vague and re-imagined the statutory language as Congress may have intended it. It concludes 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.)

Marks was decided in September, 2018 but a number of decisions have already followed the decision:

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.)

Cases Continuing to Follow 2003 and 2008 FCC Orders After Marks

Following Marks most cases now hold that the 2003 and 2008 Predictive Dialer rulings were set aside by ACA Int’l. There are a few outliers, however. See:

Prior to Marks many courts determined that the FCC’s predictive dialer rulings survived ACA Int’l. The viability of this line of cases is now questionable, however. See

  • Reyes v. BCA Fin. Servs., Inc,. No.: 1:16-cv-24077-JG, 2018 U.S. Dist. LEXIS 80690 (S.D. Fla. May 14, 2018)
  • Swaney v. Regions Bank, No.: 2:13-cv-00544-JHE, 2015 U.S. Dist. LEXIS 184751 (N.D. Ala. May 22, 2018)
  • McMillion v. Rash Curtis & Associates, No.: 16-cv-03396-YGR, 2018 U.S. Dist. LEXIS 101700 (N.D. CA, June 18, 2018)
  • Ammons vs. Ally NO. 3:17–cv–00505, 2018 WL 3134619 (M.D. Tenn. June 27, 2018)
  • O’Shea v. Am. Solar Sol., No. 3:14-cv-00894-L-RBB, 2018 U.S. Dist. LEXIS 110402 (S.D. Cal. July 2, 2018)
  • Pieterson, et al. v. Wells Fargo Bank, N.A., No.: 17-cv-02306-EDL (N.D. CA July 2, 2018)
  • Somogyi v. Freedom Mortg. Corp., No. 17-6546 (JBS/SJ) 2018 U.S. Dist. LEXIS 12697 (D.N.J. Aug 2, 2018)
  • Sieleman v. Freedom Mortg. Corp., Civil Action No. 17-13110 (JBS/JS), 2018 U.S. Dist. LEXIS 129698 (D.N.J. Aug. 2, 2018)
  • Abante Rooter and Plumbing, Inc. v. Alarm. Com, Case No. 15-cv-06314, 2018 WL 3707283 (N.D. Cal. Aug. 3, 2018)

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 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.

At least one court has squarely held that the required “human intervention” looks to whether or not the “timing” of the message is selected by a computer or a human being. See Duran v LaBoom Disco, Case No. 17-cv-7331, 2019 U.S. Dist. LEXIS 30012 (E.D.N.Y.).

Further, 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).