CEB Prac. Guide § 2B.23: ATDS

GroupMe and the Cargo Airline Association have filed Petitions to the FCC, asking the FCC to re-visit its definition of autodialer and whether consent can be given by someone other than the called party.  See the GroupMe Notice of Req for Comment by FCC, US Chamber of Commerce's Comments to the Petition, and a Notice of Ex Parte Meeting with FCC filed by… Read More

In Gragg v. Orange Cab Co., Inc., 2013 WL 195466 (W.D.Wash. 2013), Judge Lasnik found that Plaintiff’s TCPA failed under Iqbal/Twombly due to failure to plead an ATDS.  However, Judge Lasnik set forth the standards for what a Plaintiff would have to allege to properly plead use of an ATDS.  The Plaintiff alleges that he received an unsolicited text message… Read More

In Mudgett v. Navy Federal Credit Union, 2012 WL 870758 (E.D.Wis. 2012), Judge Edelman held that manually placing a call from a telephone connected to an ATDS did not trigger the TCPA. Mudgett's second argument is based on language of the TCPA that defines “automatic telephone dialing system” as equipment that has the capacity to autodial. See 47 U.S.C. §… Read More

In Johansen v. Vivant, Inc., 2012 WL 6590551 (N.D.Ill. 2012), Judge Aspen found that Iqbal/Twombly require a TCPA plaintiff to plead at least something more under the TCPA than that an ATDS was used. The cases fall within three general categories. The first set of cases hold that reciting the statutory definition of an ATDS in the complaint suffices and that the validity… Read More

On November 29, 2012, the FCC issued a Declaratory Ruling that sending a one-time confirmatory text message within five minutes of receipt of a consumer's request that no further text messages be sent does not violate the TCPA or the FCC's rules as long as the sender had prior express consent to send text messages using an automatic telephone dialing system. The FCC… Read More

In Dobbin v. Wells Fargo Auto Finance, Inc., 2011 WL 2446566 (N.D.Ill. 2011), Judge Kennelly held that the availability, but not use, of an autodialer was fatal to Plaintiff's TCPA claim. Plaintiffs concede, however, that Wells Fargo's agents' desk phones can also be used independently of its predictive dialing technology—that is, while a call center agent is not logged into the universal… Read More

Communications Innovators filed a Petition for Declaratory Ruling before the FCC, who set the deadline for commentary as November 15, 2012, and the replies due November 30, 2012.   The FCC’s inquiry suggests breadth that might not only include purported ‘dual purpose’ calls, but also what an ATDS is.  A copy of the Petition is here and the FCC's Request for Comment is here. Read More

In Meyer v. Portfolio Recovery Associates, LLC--- F.3d ----, 2012 WL 4840814 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit affirmed a certification of a TCPA class action.  Portfolio Recovery Associates, LLC (PRA) appealed the September 14, 2011 district court order granting Jesse Meyer's motion for a preliminary injunction and provisional class certification. Meyer's complaint alleged that… Read More

In Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), Judge Tharpe held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA.  Judge Tharpe found that the consumer had to consent to be ‘robo-called’. In this putative class action brought pursuant to the Telephone… Read More

In Torres v. National Enterprise Systems, Inc., 2012 WL 3245520 (N.D.Ill. 2012), Judge Der-Yeghiayan found a TCPA penalty-only lawsuit still conferred Article III ‘case-or-controversy’ jurisdiction over the case. NES argues that this court lacks subject matter jurisdiction over the TCPA claim based upon NES's contention that Torres lacks standing to bring a TCPA claim. Article III of the federal Constitution… Read More

In Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D.Cal. 2012), Judge Huff found that a single, confirmatory text message did not violate the TCPA, nor had Plaintiff pleaded the use of an ATDS.  Plaintiff filed a class action based on the following facts: Plaintiff alleges that on or about February 14, 2012, he responded to an invitation to complete… Read More

In Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Absence of consent is not a pleading requirement imposed on a TCPA plaintiff. Hilton… Read More

Previously, we reported on the Soppett v. Enhanced Recovery Appeal before the Court of Appeals for the Seventh Circuit.  The Court issued its decision today. In Soppett v. Enhanced Recover Company, LLC, here, the Court of Appeals for the Seventh Circuit held that ‘consent’ under the TCPA to call cellular telephones by autodialer means consent from the person subscribing to… Read More

In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More

In Pimental v. Google Inc., 2012 WL 691784 (N.D.Cal. 2012), Judge Rogers found that Google’s text messages to cellular telephones regarding its “disco” service pleaded facts sufficient to state a claim under the TCPA.  Google’s service was described as follows:   Text messaging allows cellular telephone subscribers to send and receive short messages, usually limited to 160 or so characters… Read More

The FCC today issued its Final Telemarketing Sales Rule today.  As to debt collection calls, the FCC noted the distinction between land-lines and cellular telephones, as well as affirming that debt collectors can obtain either oral or written consent to call consumers on their cellular telephones using an autodialer: Moreover, while we revise our consent rules to require prior written consent… Read More

In Grant v. Capital Management Services, L.P., 2011 WL 3874877 (9th Cir. 2011), the Court of Appeals held that the District Court erred in the quantum of proof it required the Defendant to demonstrate in removing a TCPA case under CAFA.    Because neither the size of the proposed class nor the total amount in controversy was apparent from the… Read More

In Griffith v. Consumer Portfolio Serv., Inc., 2011 WL 3609012 (N.D.Ill. 2011), Judge Grady denied an automobile finance company’s motion for summary judgment on the sole issue of whether it’s dialing system was an ADAD within the meaning of the TCPA.  The finance company’s system was described as follows:   The named plaintiffs in this case, Roslyn Griffith and Jerret… Read More

In First Nat. Collection Bureau, Inc. v. Walker,  --- S.W.3d ----, 2011 WL 2716778 (Tex. App. 2011), the Texas Court of Appeal affirmed a $147,000 jury verdict against a debt collector based on willful violations of the TCPA.  The facts were as follows: Walker filed this lawsuit on June 30, 2008. In her live pleading, Walker contended FNCB made calls… Read More

In Vance v. Bureau of Collection Recovery LLC, 2011 WL 881550 (N.D.Ill. 2011), Judge Dow found that Plaintiff had pleaded enough facts to proceed on a TCPA claim arising out of debt collection calls to his cellular telephone. The facts recited in the opinion were scarce, but, basically, it appears that the Plaintiff alleged that she received multiple automated debt… Read More