Second Circuit Decision Deepens TCPA Law Split

tcpa law
Print Friendly, PDF & Email

The United States Court of Appeals for the Second Circuit recently issued a decision with far reaching Telephone Consumer Protection Act (“TCPA”) implications. Specifically, the Second Circuit’s decision interpreting what constitutes an automatic telephone dialing system (“ATDS”) for TCPA law purposes bucks a recent trend that had narrowed the scope of equipment that courts deem to be an ATDS. 

For what reason did the Second Circuit broaden the definition of ATDS for TCPA law purposes?

The Second Circuit became the latest appellate court to weigh in with an interpretation of how an ATDS should be interpreted for TCPA law purposes. Following the decision in ACA International in 2017, in which Federal Communications Commission’s (“FCC”) overly-broad interpretation was vacated, the prevailing trend among appellate courts had been to interpret the term ATDS to exclude equipment that dialed from lists of numbers that are either uploaded or manually inputted to dialing application software. The reasoning behind these rulings was easy enough to understand: if equipment does not produce numbers using a random or sequential number generator, then it is, by definition, not an ATDS. The Second Circuit ultimately disagreed with this logic, however. Instead, the Court focused its analysis on whether equipment has the capacity to store and dial numbers, regardless of how the list of called numbers had been obtained or produced. Specifically, the Second Circuit summed up its interpretation as follows: “it does not matter that the lists [of numbers] are produced by human-generators rather than mechanical number-generators. What matters is that the system can store those numbers and make calls using them.”  Remarkably, the Court did not stop there. It also went a step further by rejecting another prevailing interpretation of ATDS in which courts exclude from the definition of ATDS equipment that requires human intervention to initiate the dialing. Specifically, it held that “[c]licking does not require enough human intervention to turn an automatic dialing system into a non-automatic one.”

Questions about trademark law?

Call us today at (212) 246-0900.

Our initial consultations are free.

The Second Circuit’s opinion makes it virtually inevitable that the United States Supreme Court will be called upon to definitively decide how to properly define an ATDS within the meaning of the TCPA. The Second Circuit seemingly adopted the vacated FCC 2015 interpretation by: (i) focusing exclusively on equipment’s ability to store numbers; and (ii) requiring significantly more human intervention to exclude equipment from the ATDS definition than has been deemed necessary by nearly every other circuit that has ruled on this issue to date.  Readers of this blog will recall how the FCC 2015 Order had been vacated by the D.C. Circuit in ACA International because of that Court’s fear that the interpretation was so broad as to encompass ordinary cellphones. The Second Circuit’s embrace of an interpretation that would also likely encompass cellphones seems probable to hasten the Supreme Court’s willingness to take up the issue to settle the growing circuit split. 

Taking Steps to Avoid a TCPA Law Claim

In the post-ACA International regulatory environment, it is critical for businesses to understand the scope of the TCPA’s restrictions before commencing any telemarketing campaign. The hodgepodge of rules governing compliance with the TCPA, and the staggering exposure to liability that companies face for violating the statute, makes it imperative to have telemarketing practices and procedures examined by experienced counsel in order to mitigate risk. 

If you are interested in learning more about the TCPA law or need to review your telemarketing practices, please e-mail 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 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.

Attorney Advertising

Similar blog posts: 

TCPA News: FCC Seeks Public Comment on ATDS Definition

TCPA Lawsuit Tests Definition of ATDS After ACA International

TCPA Law – The Evolving Definition of ATDS

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.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin