Following the United States Supreme Court’s decision in Facebook v. Duguid, consumers alleging Telephone Consumer Protection Act (“TCPA”) claims against companies for using an automatic telephone dialing system (“ATDS”) are increasingly rare. Notwithstanding the foregoing, these cases still are filed on occasion. For example, a Texas federal court recently was tasked with having to decide whether Plaintiff’s ATDS TCPA claim could survive dismissal. We discuss this decision in more detail below.
Post-Facebook TCPA Claim
In Ortega v. DiTommaso, Inc., Plaintiff, on behalf of himself and a putative class of consumers, asserted a TCPA claim against Defendant for allegedly making unsolicited calls through the use of an ATDS. An ATDS TCPA claim may be asserted under 47 U.S.C. § 227(b), which makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . .” to a cellular telephone. Defendant filed a Motion to Dismiss this TCPA claim on the grounds that Plaintiff failed to allege that Defendant used an ATDS to make the calls at issue in the proceeding. Although the Court found that Plaintiff did allege that Defendant used an ATDS, the Court, nonetheless, granted Defendant’s motion and dismissed Plaintiff’s ATDS TCPA claim. In granting Defendant’s motion, the Court relied upon the Supreme Court’s decision in Facebook. In Facebook, the Court held that a device “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator” in order to qualify as an ATDS. Here, the Court held that Defendant’s device did not qualify as an ATDS because Plaintiff alleged that it automatically dialed telephone numbers from a list of numbers, which was insufficient to adequately plead an ATDS TCPA claim. As such, the Court granted Defendant’s Motion to Dismiss.
TCPA Compliance Requires Experienced Attorneys
While it is too early to tell whether ATDS-dependent TCPA claims are making a comeback, this case illustrates that these types of TCPA claims are not completely dead. Our readers may recall a post-Facebook case in the Third Circuit Court of Appeals in which the court took a very different approach to determining whether a device falls within the definition of an ATDS. Even after Facebook, interpretation of the TCPA is constantly evolving and often depends on the jurisdiction in which a given TCPA claim is brought. Ensuring that your business remains TCPA compliant requires constant vigilance; hiring experienced telemarketing attorneys can help alleviate the burden of maintaining TCPA compliance. The attorneys at Klein Moynihan Turco have years of telemarketing law experience and are at the forefront in advising businesses on how to follow industry-best practices.
If you need assistance with updating your telemarketing practices or have been sued for violating the TCPA, email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking 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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