Human Intervention Defeats TCPA ATDS Claim

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May 7, 2015

atdsWhile federal courts throughout the country continue to struggle with the question of what constitutes an automatic telephone dialing system (“ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”), one federal court has recently provided clarity. In McKenna v. Whispertext, the United States District Court for the Northern District of California dismissed a putative TCPA class action lawsuit on the grounds that the plaintiff had failed to allege that the defendant in fact used an ATDS. The plaintiff relied heavily on a ruling by the Federal Communications Commission (“FCC”) that had provided a broad definition of ATDS. The Court concluded, however, that even under the FCC’s broad definition of an ATDS, human intervention on the part of the sender can remove a claim from the scope of the TCPA.

Why is human intervention in use of an ATDS important?

Human Intervention Removes an ATDS from TCPA Prohibition

The Court began its analysis by noting that pursuant to the TCPA, an ATDS is telemarketing equipment that can both store and produce telephone numbers to be called and can dial such numbers. The plaintiff argued that the defendant’s equipment constituted an ATDS within the meaning of the TCPA because the FCC had found that the TCPA covers “‘any equipment’ with the capacity to ‘generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.’” Even when applying this expanded definition, however, the Court stated that the plaintiff still failed to state a claim under the TCPA because the defendant’s equipment “can send SMS invitations only at a user’s affirmative direction to recipients selected by the user.” Accordingly, the Court dismissed the class action lawsuit.

Protect Yourself

As we have previously blogged, the definition of an ATDS remains a hot topic in TCPA litigation throughout the United States. Over the past decade, the FCC has expanded the scope of the TCPA by broadening its applicability. However, federal courts have recently been limiting the scope of TCPA definitions, particularly with respect to the definition of an ATDS. We will continue to monitor courts for continued refinement of the definition.

If you are interested in learning more about this topic or if you have been served with process concerning the TCPA or your telemarketing practices, please e-mail us at 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 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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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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