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July 02, 2019 Top Story

Unsolicited Text Messages Drive Circuit Split

Expanded definition of dialing system includes devices that simply store telephone numbers

By Amy Mattson

Interpretation of the statute governing “robocalls”—or, in this case, texts—has given rise to a circuit split.

Does the Telephone Consumer Protection Act apply to robo-texts?

Does the Telephone Consumer Protection Act apply to robo-texts?

iStockphoto by Getty Images

An automatic telephone dialing system (ATDS) includes devices with the capacity to dial stored numbers automatically, regardless of how the device generates the numbers, ruled the U.S. Court of Appeals for the Ninth Circuit. The decision creates a circuit split as to the Telephone Consumer Protection Act’s (TCPA) definition of an ATDS, after the Third Circuit held that such systems require random or sequential number generation.

Action to Stop Unwanted Text Messages Results in Expanded Auto-Dialer Definition

In Marks v. Crunch San Diego, LLC, a dispute arose when a gym member brought a putative class action after he received three unsolicited text messages from his gym. The member alleged the gym violated the TCPA by using an ATDS to send the messages. The district court disagreed and granted the gym’s motion for summary judgment.

At issue was the device used to send the messages, a web-based marketing platform designed to deliver promotional texts to a list of stored phone numbers. A gym employee would log on to the platform, select recipient phone numbers, and generate a message which the system would automatically send at a designated date and time.

In its opinion vacating summary judgment and remanding the case to the district court, the appellate court rejected the defendant’s argument that a device could not qualify as an ATDS unless it was fully automatic. In other words, the Ninth Circuit held a device may run afoul of the law even with some human intervention.

The Ninth Circuit sided with the plaintiff. It reasoned that the text message platform qualified as an ATDS under the TCPA because the platform stored and dialed numbers automatically. The court opined that in giving ATDS its name, Congress targeted devices that could autodial, rather than equipment that ran with no human control. Thus, the court stated, it did not matter whether humans, as opposed to machines, added numbers to the system.

Nor did it matter who sent the texts. The court pointed out some human intervention was necessary for any dialing system to work. “Common sense indicates that human intervention of some sort is required before an auto-dialer can begin making calls, whether turning on the machine or initiating its functions,” it noted.

Court Dismisses Conflicting Third Circuit Opinion

In a footnote, the court dismissed the Third Circuit’s narrow interpretation of an ATDS as a device capable of generating random or sequential numbers. The Ninth Circuit concluded the Third Circuit based such an interpretation on an “unreasoned assumption” and the interpretation was “without explanation.”

Under Dominguez v. Yahoo, Inc., the Third Circuit determined the defendant’s text message service, which sent users text notifications each time they received an email, was not an ATDS. The service sent messages only to phone numbers that had been manually and individually keyed in, not randomly produced. More specifically, the court noted the service generated messages because the prior owner of the plaintiff’s phone number opted to receive them—not because of random number generation.

This holding led the Ninth Circuit to conclude that the Third Circuit failed to resolve a linguistic problem the Third Circuit had identified in a prior unpublished opinion in the same case. In that opinion, the Third Circuit found ambiguity in the statutory ATDS definition: “to store or produce telephone numbers to be called, using a random or sequential number generator.” Specifically, the Third Circuit noted, it was unclear how an ATDS could store, as opposed to produce, a number.

The Ninth Circuit reasoned that because Dominguez “merely avoided the interpretive questions raised by the statutory definition of an ATDS” and lacked statutory analysis, the decision was “unpersuasive.” After conducting its own analysis, the Ninth Circuit concluded the capacity to store numbers was sufficient for a system to be an ATDS, even without random or sequential number generation.

Uncertainty Engenders Caution and Foreseeable Litigation

“The statutory definition of an ATDS is far from clear,” says Christopher E. Roberts, Clayton, MO, cochair of the ABA Section of Litigation’s Consumer Litigation Committee’s TCPA & FDCPA Subcommittee. “The current landscape makes it more difficult for plaintiffs’ and defendants’ counsel alike to understand what is and is not an ATDS,” he adds. Thus, Roberts notes, “businesses should be very careful about engaging in telemarketing until after the law is well settled on the matter.” In particular, businesses “should be very conscientious about obtaining express written consent to send text messages,” he urges.

Jason B. Tompkins, Birmingham, AL, cochair of the Section of Litigation’s Consumer Litigation Committee, agrees. “Know the law in your jurisdiction, and know your client’s dialing system intimately,” he suggests. “Practitioners need to understand how numbers are inputted or generated in those systems and exactly how the system makes outbound calls to those numbers,” he says.

Tompkins also cautions that the Ninth Circuit decision may engender even more variations in the way courts define an ATDS. These variations stem from the D.C. Circuit’s decision in ACA International v. FCC, where the court rejected Federal Communications Commission orders defining auto-dialers as unreasonably expansive. “I expect many more contours to develop as courts attempt to reconcile Marks with ACA International, says Tompkins. “Currently, the decisions are all over the map. There is still a fight to be had.”


Amy Mattson is an associate editor for Litigation News.

Hashtags: #NinthCircuit, #ThirdCircuit, #Robocalls, #TCPA, #Telemarketing, #CircuitSplit

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