The Court of Appeals for the Second Circuit has overturned a lower court’s partial summary judgment ruling that a defendant violated the Telephone Consumer Protection Act by using an automated telephone dialing system because the District Court relied on the 2015 Declaratory Order from the Federal Communications Commission, which has since been invalidated by an Appeals Court, and because “the district court’s analysis was based on an incorrect interpretation of the statutory text.” The case has been sent back to the District Court.
A copy of the ruling in King v. Time Warner Cable can be accessed by clicking here.
The plaintiff had been awarded $229,500 after alleging she had received 163 calls from Time Warner because her phone number had been reassigned. Nearly half of the messages had been sent after the plaintiff had filed suit in the case. The plaintiff had even engaged in a seven-minute conversation with a representative of the defendant to ask that the calls stop. King was a customer of the defendant, but was not the individual the defendant was seeking to contact when it placed the calls to the plaintiff.
In reaching its ruling, the Appeals Court delves into the issue of capacity and whether the system used by the defendant qualifies as an ATDS under the TCPA. In its 2015 Order, the FCC had said that any system that has the current or future capacity to store or produce phone numbers using a random or sequential number generator is an ATDS. That definition was tossed by the Court of Appeals for the D.C. Circuit in its ruling in ACA International v. FCC.
Not only was the District Court ruling incorrect because it was based on an Order that was invalidated by the court, but the interpretation of what defines capacity was never right in the first place, the Appeals Court ruled.
We view the D.C. Circuit’s discussion as correctly drawing a distinction between a device that currently has features that enable it to perform the functions of an autodialer — whether or not those features are actually in use during the offending call — and a device that can perform those functions only if additional features are added. We find that distinction persuasive; accordingly, we would conclude that the former category of devices falls within the definition of an ATDS, and the latter does not.
