Appeals Court Follows 9th Circuit’s Marks Approach on ATDS Definition

Capacity for ATDS under TCPA stands in U.S. 2nd Circuit Court of Appeals.

4/7/2020 2:00 PM

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Appeals Court Follows 9th Circuit’s Marks Approach on ATDS Definition

The U.S. 2nd Circuit Court of Appeals, according to an April 7 ruling, states that programs used by the defendant in Duran v. La Boom Disco have the capacity necessary to qualify as an automatic telephone dialing systems, (ATDS), because they store lists of numbers, as is permitted under the Telephone Consumer Protection Act.

The court’s decision follows the 9th Circuit Court of Appeal’s decision that the web-based platform the gym operator in Crunch San Diego LLC v. Marks used to send promotional text messages to its members’ and prospective customers’ cell phones may be subject to the TCPA’s autodialer restrictions because it "stores numbers and dials them automatically to send text messages to a stored list of phone numbers," ACA International previously reported.

According to the 2nd Circuit’s ruling, "Plaintiff-Appellant Radames Duran ("Duran") claims that he received, over the course of more than a year-and-a-half, hundreds of unsolicited text messages from Defendant-Appellant La Boom Disco, Inc. ("LBD"), all sent using Automatic Telephone Dialing Systems ("ATDSs") in a way prohibited by the Telephone Consumer Protection Act of 1991 ("TCPA"). LBD acknowledges that it sent the messages, but counters that its actions were not prohibited by the TCPA because the texting platforms used to send them were not, in fact, ATDSs. Of course, only one party can be right: either LBD used ATDSs, or it did not. If LBD did do so, then it is liable to Duran under the TCPA. But if LBD did not do so—if it used some non-ATDS technology to send its texts—then Duran has no case."

The 25-page decision presents debate over what qualifies as an ATDS under the TCPA and the court ultimately found, in this case, that the capacity to dial stored phone numbers without human intervention means a device is an ATDS and vacated the district court’s judgment from the U.S. District Court for the Eastern District of New York.

ACA International will provide additional analysis of this case.

 

 


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

Appeals Court Follows 9th Circuit’s Marks Approach on ATDS Definition

The U.S. 2nd Circuit Court of Appeals, according to an April 7 ruling, states that programs used by the defendant in Duran v. La Boom Disco have the capacity necessary to qualify as an automatic telephone dialing systems, (ATDS), because they store lists of numbers, as is permitted under the Telephone Consumer Protection Act.

The court’s decision follows the 9th Circuit Court of Appeal’s decision that the web-based platform the gym operator in Crunch San Diego LLC v. Marks used to send promotional text messages to its members’ and prospective customers’ cell phones may be subject to the TCPA’s autodialer restrictions because it "stores numbers and dials them automatically to send text messages to a stored list of phone numbers," ACA International previously reported.

According to the 2nd Circuit’s ruling, "Plaintiff-Appellant Radames Duran ("Duran") claims that he received, over the course of more than a year-and-a-half, hundreds of unsolicited text messages from Defendant-Appellant La Boom Disco, Inc. ("LBD"), all sent using Automatic Telephone Dialing Systems ("ATDSs") in a way prohibited by the Telephone Consumer Protection Act of 1991 ("TCPA"). LBD acknowledges that it sent the messages, but counters that its actions were not prohibited by the TCPA because the texting platforms used to send them were not, in fact, ATDSs. Of course, only one party can be right: either LBD used ATDSs, or it did not. If LBD did do so, then it is liable to Duran under the TCPA. But if LBD did not do so—if it used some non-ATDS technology to send its texts—then Duran has no case."

The 25-page decision presents debate over what qualifies as an ATDS under the TCPA and the court ultimately found, in this case, that the capacity to dial stored phone numbers without human intervention means a device is an ATDS and vacated the district court’s judgment from the U.S. District Court for the Eastern District of New York.

ACA International will provide additional analysis of this case.

 

 


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

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