Second Circuit Joins Ninth Circuit in Definition of ATDS Under TCPA

The Court of Appeals for the Second Circuit has overturned a lower court’s summary judgment ruling in favor of a defendant who was sued for violating the Telephone Consumer Protection Act for allegedly sending text messages using an automated telephone dialing system. The Second Circuit, in joining the Ninth Circuit Court of Appeals, determined that an ATDS is defined as technology that has “the “capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator.”

A copy of the ruling in the case of Duran v. La Boom Disco can be accessed by clicking here.

Appeals Courts across the country have been wrestling with how to interpret the TCPA as it applies to the ATDS definition. The Seventh and Eleventh Circuit, for example, have determined that technology that does not have the capacity to generate random or sequential numbers does not meet the definition of an automated telephone dialing system under the Telephone Consumer Protection Act. But the Ninth Circuit — and now the Second Circuit — have ruled otherwise.

In this case, the plaintiff received more than 300 text messages from the defendant after sending a message seeking a code to gain free admission to a party. The plaintiff filed suit, alleging he did not consent to receiving the text messages and that the defendant was violating the TCPA. The defendant countered that the amount of human intervention required in sending the messages meant that it was not using an ATDS and thus, the text messages, did not fall under the TCPA. A District Court judge granted the defendant’s motion for summary judgment, which the plaintiff appealed to the Second Circuit.

Wondering why Congress included both “store” and “produce” in its definition of an ATDS, the Second Circuit noted that “common sense suggests that any number that is stored using a number-generator is also produced by the same number-generator; otherwise, it is not clear what “storing” using a number-generator could mean. It would be odd for Congress to include both verbs if, together, they merely created redundancy in the statute.”

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