Business litigation partners Mike Daly and Marsha Indych coauthored an article for Law360 on the aftermath of the U.S. Supreme Court’s decision on the definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA).
In Facebook Inc. v. Duguid, the Supreme Court held that “a necessary feature of an ATDS is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” That holding should have made most ATDS claims untenable, as most callers dial numbers from a stored list, rather than generating them randomly or sequentially. As Daly and Indych explain, however, plaintiffs have tried to repackage old arguments (regarding the unused “capacity” to generate other numbers randomly or sequentially) or concoct new ones (regarding randomly or sequentially selecting numbers from a stored list).
The authors note that, although it is more difficult for plaintiffs to succeed with an ATDS claim, it is not necessarily harder for them to pursue one, at least at the pleading stage. They also explain that other types of TCPA claims are on the rise, and state telemarketing statutes are filling the void created by Facebook. Finally, they warn that the Federal Communications Commission (FCC) is considering action that would bring ringless voicemails within the TCPA’s purview.
The full article is available for Law360 subscribers.