Ninth Circuit Rules on TCPA “Mixed Use” Wireless Numbers and ATDS
The Ninth Circuit also recently issued another decisions of interest to telemarketers that pertains to the definition of an “automatic telephone dialing system.”
Definition of Automatic Telephone Dialing System
In Borden v. eFinancial, LLC (No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022)), a unanimous panel ruled that an ATDS is dialing equipment that must generate and dial random or sequential telephone numbers.
The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
The Court explained that this statutory text “makes clear that the number in ‘number generator’ within subpart (A) means a telephone number.” The Court also found that other sections of the TCPA (e.g., DNC provisions) use “telephone number” and “number” interchangeably.
The Ninth Circuit also observed that Mr. Borden’s argument would contradict the Supreme Court Facebook ruling which held that the “random or sequential number generator” part of the definition of an ATDS is a “necessary feature.”
It would also presumably once again, whether intentional or not, render virtually all cell phone user potentially liable for TCPA violations.
Takeaway in the Ninth Circuit: Receiving even one unsolicited, automated text message is the precise harm identified by Congress, and a concrete and particularized injury sufficient for Article III standing in the Ninth Circuit. The Ninth Circuit has set a low bar for TCPA standing. Cell phones are presumed residential and can also be residential even when used for both business and personal. The issue of whether a telephone line is residential or business is a fact-intensive inquiry. However, ATDS claims cover calls to cell phones for both businesses and individuals in the Ninth Circuit. The decision bears significantly on TCPA class action litigation.
Richard B. Newman is a FTC lawyer at Hinch Newman LLP.
Informational purposes only. Not legal advice. May be considered attorney advertising.
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