Stephen R. Freeland

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On May 26, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Cranor v. 5 Star Nutrition, LLC, holding that the receipt of a single text message is a sufficient injury to convey standing under the Telephone Consumer Protection Act (“TCPA”). This creates a circuit split with the Eleventh Circuit’s 2019 opinion entered in Salcedo v. Hanna, which we previously blogged about.

Cranor made its way to the Fifth Circuit after the district court dismissed the case on grounds that a single text message doesn’t “involve [the same] intrusion into the privacy of the home” as a call to a residential landline. In its opinion, the Fifth Circuit looked to the (1) congressional purpose of the TCPA, and (2) traditional basis for actionable, intangible harm in holding that the receipt of a single text message constitutes an injury under the TCPA.…

Continue Reading Singled Out: One Text Message Conveys TCPA Standing in the Fifth Circuit

Yesterday, the Supreme Court issued a 9-0 unanimous decision authored by Justice Sotomayor (with Justice Alito writing a concurring opinion) in Facebook, Inc. v. Duguid, resolving the circuit split on what constitutes a prohibited “automatic telephone dialing system” (more often referred to as an “autodialer” or “ATDS”) and adopting a narrow definition of ATDS. Yesterday’s ruling likely provides welcome relief to those subject to the TCPA—at least for the time being. More on that below.

Specifically, the Court favored the Third, Seventh, and Eleventh Circuits’ autodialer definitions and held that, in order to be an ATDS, “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 other words, a telephone number must essentially be pulled out of thin air and then called or texted; that is what “random or sequential” number generation means. That type of technology was commonly used in the early 1990s when the TCPA was enacted, but virtually no one uses it anymore. Now, companies typically dial from stored lists of specific telephone numbers. The Supreme Court’s concern was that, if it accepted the alternative ATDS definition—that dialing from a cultivated list of telephone numbers constitutes autodialing—such interpretation “would capture virtually all modern cell phones . . . The TCPA’s liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text message responses.” Notably, during oral argument last December, Justice Sotomayor foreshadowed her and the other justices’ doubts in questioning to Bryan Garner, Duguid’s counsel:…

Continue Reading Message Received: Supreme Court Narrowly Construes Autodialer Definition

The issue of what exactly is an autodialer, subject to the restrictions of the Telephone Consumer Protection Act (“TCPA”), may eventually be resolved. But for now, the outlook is much like the long-ago Brooklyn Dodger’s chance of winning the World Series: “Wait ‘Til Next Year.” On July 29, 2020, a divided, 2-1 panel in the Sixth Circuit issued its opinion in Allan v. Pennsylvania Higher Education Assistance Agency, deepening the circuit split over the breadth of the TCPA. Specifically, the Sixth Circuit held that any device that dials from a stored list of numbers is sufficient to constitute an “automatic telephone dialing system” (“ATDS” or “autodialer”). This decision comes on the heels of the Supreme Court granting certiorari in Facebook, Inc. v. Duguid, setting the stage for the high court to, hopefully, not only resolve the split among the circuits, but produce a definition of an autodialer that permits the responsible and efficient generation of calls for a broad array of legitimate reasons—indeed in some cases emergency. (Interestingly, in Allan, the defendant opposed the plaintiffs’ motion to stay the appeal pending Duguid. That’s likely because the defendant had previously prevailed on the ATDS issue in the Eleventh Circuit a few months earlier in a consolidated appeal.)

In Allan, the plaintiffs received hundreds of unwanted calls and automated voice messages regarding student loan debt after they had requested to no longer be called; many of these calls delivered a prerecorded message as well. Plaintiffs sued alleging that they did not consent to the unwanted calls; the district court granted summary judgment to the plaintiffs. On appeal, the Sixth Circuit addressed whether the Defendant’s calling platform constituted an ATDS where it created a calling list based on stored numbers and placed calls, connecting recipients to operators.…

Continue Reading Deepening the Divide: Will the Sixth Circuit’s Expansive Reading of the ATDS Definition Survive?

Last weekend, New York Governor Andrew Cuomo declared a state of emergency in the State due to the coronavirus outbreak. That’s scary enough. But there is an equally scary and somewhat odd consequence of New York’s declared state of emergency: the recently enacted New York Nuisance Call Act kicks in automatically. As a practical matter,…

A bipartisan, public/private coalition of 51 attorneys general and 12 phone companies have agreed to create the “Anti-Robocall Principles,” a set of eight principles to fight “illegal robocalls” that the phone companies have voluntarily agreed to adopt by incorporation, or continued incorporation into their business practices.  The principles are available here and press release is here.

Why it matters:  “Illegal and unwanted robocalls continue to harm and hassle people every day. Consumer fraud often originates with an illegal call, and robocalls regularly interrupt our daily lives.  Robocalls and telemarketing calls are the number one source of consumer complaints at many state Attorneys General offices, as well as at both the Federal Communications Commission and the Federal Trade Commission.  State Attorneys General are on the front lines of enforcing do-not-call laws and helping people who are scammed and harassed by these calls.” according to the principles.

The coalition of companies includes twelve major carriers.…

Continue Reading Anti-Robocall Principles Agreed to by Carriers and State AGs

Twombly and Iqbal—two names that invoke fond memories of the first year of law school for the (much) younger attorneys—have defined the bar that each plaintiff must meet to survive a Rule 12(b)(6) motion to dismiss. Walk into any first-year civil procedure class and you’ll hear the students muttering the following like a nursery rhyme or a page from a Dr. Seuss book, “Twombly said ‘enough facts to state a claim to relief that is plausible on its face’ and Iqbal followed ‘[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.’” The lesson the students are supposed to take away is that a complaint must connect the dots between a defendant and the claim.

In a recent ruling issued by the Southern District of California, Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court confirmed that this fundamental requirement applies, unsurprisingly, to Telephone Consumer Protection Act (“TCPA”) claims against multiple defendants. In particular, the court dismissed the TCPA claim because the plaintiff failed to identify who actually called him.…

Continue Reading Who Made the Call? Applying the Fundamentals of Pleadings to TCPA Actions

Do you know what your arbitration provisions say about arbitrability? If not, now is a good time to review them in light of the U.S. Supreme Court’s unanimous decision this week in Henry Schein, Inc. v. Archer & White Sales, Inc. holding that, where parties have entered into an arbitration agreement, and that agreement clearly delegates to an arbitrator the question of which disputes must be arbitrated (i.e., questions of “arbitrability”), courts must enforce those terms and permit the arbitrator – not the judge – to determine whether the specific dispute in question will proceed in arbitration or in court.

The case was filed in Texas federal court by Archer and White (“Archer”) after its relationship with Henry Schein, Inc. (“Schein”) soured. Archer, a dental equipment distributor, entered into a contract with Pelton and Crane (“Pelton”) to distribute dental equipment manufactured by Pelton. Archer thereafter sued Pelton’s successor-in-interest and Schein alleging violations of federal and state antitrust laws, seeking both monetary damages and injunctive relief.…

Continue Reading SCOTUS Instructs Courts to Enforce Parties’ Agreements with Respect to Arbitrability

What is an autodialer under the TCPA? That’s a good question and one with which courts across the country are struggling as much as Charles Darnay struggled with his aristocratic heritage leading up to the French Revolution. My memory of the CliffsNotes to the Dickens classic aside, fortunately, the Federal Communications Commission (“FCC”) is, as its Chairman recently described it, “poised” to provide clarity on what types of devices fall within the definition as part of an ongoing declaratory ruling proceeding. Nonetheless, several courts recently have issued divergent decisions regarding technology that constitutes an autodialer under the statute.

The Best of Times: On September 21, 2018, the U.S. District Court for the District of New Jersey held, in Fleming v. Assoc. Credit Servs., Inc., No. 16-3382, 2018 WL 4562460 (D.N.J. Sept. 21, 2018), that that the defendant’s calling platform (LiveVox’s Human Call Initiator (“HCI”)), which “dials numbers from a list that was not randomly or sequentially generated when the list was created” does not qualify as an “automatic telephone dialing system” (“ATDS” or autodialer) under the TCPA based on the statutory definition. In other words, because HCI did not randomly or sequentially generate the numbers that ultimately were contained on the list of numbers called, the platform did not fit the ATDS definition. Specifically, the court explained: “The phrase ‘using a random or sequential number generator,’ I believe, applies to the manner in which the numbers make their way onto the list – not to the manner in which the numbers are dialed once they are on the list.”…

Continue Reading The Definition of Autodialer Under the TCPA: A Tale of Two Courts

CommentsThe FCC is going back to the drawing board—and it wants some help.

Earlier this week, the Commission announced that it is seeking comments “on several issues related to interpretation and implementation of the Telephone Consumer Protection Act (TCPA), following the recent decision” of the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

As we have written previously, in March the D.C. Circuit issued its long-awaited ruling on the FCC’s 2015 Omnibus Telephone Consumer Protection Act Order (2015 Order) in which the Commission set out to resolve 21 requests for clarification about the TCPA and related rules and orders. The D.C. Circuit’s decision dealt a partial blow to the 2015 Order, setting aside the FCC’s interpretation of “automatic telephone dialing system” (“autodialer” or “ATDS”) as overly broad and vacating the agency’s approach to calling reassigned numbers—i.e., restrictions on calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The D.C. Circuit vacated in particular the FCC’s reading of the statute to permit a one-call safe harbor for callers to determine whether a number had been reassigned to a nonconsenting person. The court, however, did uphold the FCC’s conclusion that parties may revoke their consent through any “reasonable means” clearly expressing a desire to receive no further messages from the caller. It also upheld the scope of the Commission’s exemption for time-sensitive, healthcare-related calls.…

Continue Reading FCC Seeks Comments on TCPA After D.C. Circuit Ruling

telemarketing lawsAfter keeping us waiting for nearly a year and a half after oral argument in October 2016, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit last week weighed in on the Federal Communications Commission’s (FCC) 2015 Omnibus Telephone Consumer Protection Act (TCPA) Order, which we previously summarized. The court was asked to opine on four aspects of the 2015 Order, including its expanded definition of “automatic telephone dialing system” (more commonly referred to as an “autodialer” or ATDS), restrictions on calling reassigned numbers, and whether and when previously provided consent may be revoked. Although we happily welcome the ruling, we did not get all the answers that industry was likely hoping for.

In the 51-page ruling, the court first set aside the FCC’s efforts to “clarify” the definition of “autodialer” and explicitly rejected its expanded definition of “capacity,” holding that “the Commission’s interpretation of the term ‘capacity’ in the statutory definition of an ATDS is ‘utterly unreasonable in the breadth of its regulatory [in]clusion.’” However, the court did not agree that the label “present ability” or use of a calling platform should be the determining factor either:…

Continue Reading March Madness: Long-Awaited D.C. Circuit Decision Strikes Down Parts of the FCC’s 2015 Omnibus TCPA Order