TCPA Update: Telemarketer Friendly ATDS and Single Text Rulings by Richard B. Newman, September 20, 2019 A Florida federal court recently ruled in favor of the defendant when it held that dialing equipment must have the requisite “present capacity” to constitute an ATDS (Brown v. Ocwen Loan Servicing LLC) Here, husband-and-wife plaintiffs claimed that defendant mortgage servicer violated the Telephone Consumer Protection Act because it used an ATDS and an artificial or prerecorded voice. The defendant disputed these allegations, also asserting that it had lawful, unrevoked consent. Notably, the court granted summary judgment on the ATDS issue when it determined that defendant’s dialing equipment did not satisfy the statutory definition of ATDS as interpreted by the D.C. Circuit in ACA International. In ACA International, the D.C. Circuit reviewed a 2015 FCC order that interpreted the TCPA’s prohibition against using automated dialing devices to make unsolicited calls to cellular telephones. The court set aside two portions of the 2015 Order and confirmed two others. In its decision, the court set aside: (i) the 2015 Order’s “expansive” definition of an ATDS; and (ii) the Order’s “one-call safe harbor” exemption for reassigned wireless phone numbers. In Brown, the court summarized the undisputed evidence. It found that defendant stores its borrowers’ data in a program called “RealServicing Loan Platform.” It found that defendant identifies certain borrowers and creates call lists that are transferred to various software systems, and that defendant configures the manner in which calls are placed. The court agreed with defendant that a dialing system must have the “present ability” to generate random or sequential numbers to meet the definition of an ATDS. It did so, in part, by relying upon Gonzalez v. Ocwen Loan Servicing, LLC (the definition of an ATDS would not include a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them; but it would include a predictive dialer that presently has that capacity). Ultimately, the court agreed that defendant’s dialer was not capable of generating and dialing random or sequential numbers and was therefore, functionally, not an ATDS. Also worth noting is that the Eleventh Circuit recently held that receiving a single unsolicited text message does not amount to the harm required to sustain a TCPA claim (Salcedo v. Hanna). Here, plaintiff brought a TCPA claim against his former attorney after allegedly receiving a text message offering a discount on legal services. Plaintiff filed a putative class action lawsuit and the district court denied defendants’ motion to dismiss for lack of standing. The issue was appealed that the Eleventh Circuit reversed, creating a circuit split. In short, the court observed that plaintiff alleged that receiving the single text message “caused [him] to waste his time answering or otherwise addressing the message”; that he and his phone here “unavailable for otherwise legitimate pursuits”; and that his privacy rights were invaded. In a fit of logic, the Eleventh Circuit reasoned that plaintiff failed to allege that the text cost him anything or that he had suffered tangible harm. The court also considered the legislative history of the TCPA and noted that Congress’s intent in regarding text messages under the TCPA is “ambivalent at best.” The court also disagreed with plaintiff’s privacy-related arguments, in part, because he was not at home when he received the texts. The court did not believe that plaintiff suffered any harm at all, and no injury in fact. The ruling stands in contrast to a recent Ninth Circuit and may very well have consequences on class certification in the Eleventh Circuit for plaintiffs that are unable to establish concrete harm. In a time when TCPA plaintiffs’ attorneys, FTC lawyers and enforcement partners are cracking down on DNC violations, two wins for telemarketers. Richard B. Newman is an FTC defense attorney at Hinch Newman LLP. Follow him on LinkedIn @ FTC CID Attorney. Informational purposes only. Not legal advice. Attorney advertising. Filed under: Blue Book, Revenue, Revenue Blog Tagged under: ATDS, FTC defense attorney, Telephone Consumer Protection Act About the Author Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP. He is a nationally recognized FTC defense lawyer and advertising compliance attorney. He regularly provides advertising counsel and represents clients in high-profile investigations (CIDs) and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard’s practice also concentrates upon transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements.