On September 25, 2024, 1-800-LAW-FIRM, PLLC (“Defendant”) was sued in the United States District Court for the Eastern District of Michigan for allegedly violating the automatic telephone dialing system (“ATDS”) and National Do Not Call (“DNC”) registry compliance provisions of the Telephone Consumer Protection Act (“TCPA”). The TCPA requires that telemarketing companies obtain prior express consent before contacting consumers using an ATDS. If companies do not obtain prior express consent, they expose themselves to called party ATDS claims. ATDS claims often create a private right of action for the recovery of statutory damages.
In Dobronski v. 1800-LAW-FIRM, PLLC, Plaintiff alleged that he received over a dozen text messages promoting Defendant’s legal services. On at least two occasions, Plaintiff maintains that he attempted to opt out of these marketing communications. In addition, Plaintiff alleges that he never consented to the receipt of the subject text messages. To further bolster his ATDS claim, Plaintiff states that the text messages were: 1) generic and impersonal in nature; and 2) sent with a frequency characteristic of a system that uses a number generator to “pick phone numbers from a pre-produced list and store those numbers to be dialed at a later time.” Note that Plaintiff is a repeat TCPA litigant, and the operative Complaint reflects his familiarity with the TCPA.
ATDS Claims in the Wake of Facebook
As our readers are aware, Facebook settled a longstanding circuit split by determining that an ATDS (within the meaning of the TCPA) must have the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. Prospective TCPA plaintiffs faced new hurdles after the United States Supreme Court decided that “random or sequential number generator” modifies both the “store” and “produce” language contained in the statute. However, opportunistic plaintiffs continue to file ATDS claims by capitalizing on a single sentence in footnote 7 of the Facebook decision. This sentence reads: “For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” Our readers may notice that Plaintiff’s operative ATDS allegation (set forth above) in large part tracks footnote 7.
Maintain Strict TCPA ATDS Compliance Procedures
Companies can help avoid ATDS-based lawsuits if they comply with the TCPA’s consumer consent requirements. As a bright line rule, when utilizing an ATDS to place marketing calls/texts to cellphones or send prerecorded marketing messages to any phone, companies must obtain prior express written consent from consumers.
A written TCPA disclosure should accompany the manner by which companies obtain consumer telemarketing permission. This disclosure should be clear and conspicuous and include the following:
- The company to whom telemarketing consent is being provided;
- That the consumer is consenting to receive telemarketing communications;
- That calls/texts will be made using automated technology; and
- That the consumer is not required to provide consent as a condition of purchase/service.
Why is Dobronski Important to Your Business?
In the wake of Facebook, many plaintiffs have pivoted away from TCPA lawsuits that rely upon ATDS claims. Unfortunately, some plaintiffs continue to depend on footnote 7 of the Facebook decision to file ATDS claims.
Against this backdrop, it is critical that companies maintain proper ATDS compliance procedures. The attorneys at Klein Moynihan Turco regularly advise clients on DNC compliance and defend TCPA class action matters.
If you require assistance with telemarketing law compliance or related litigation defense, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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