Fifth Circuit Faced with Post-Marks Litigation: Do We Know What an “Automated Telephone Dialing System” is Anymore?

Yahitza Nuñez

Associate Editor

Loyola University Chicago School of Law, LL.M. 2019

Will new litigation affect Beto O’Rourke’s campaign? With election polls opening up for early voting last week, a one week left of campaigning and the new Telephone Consumer Protection Act (the “TCPA”) litigation to defend, it is unlikely that Beto O’Rourke will not be slowing down any time soon. O’Rourke has made it his mission to reach all voters, not just those residing in the three major cities: Austin, Houston and Dallas. New litigation filed October 19, 2018, raises the question whether “Beto for Texas” reached those voters in violation of the TCPA and the recent Marks v. Crunch decision. The litigation will address whether the 5th Circuit will implement Marks expansive definition of an “automated telephone dialing system.”

Is your equipment now considered an Automated Telephone Dialing System?

The implementation of the TCPA gave consumers the option to avoid unwanted telephone solicitation. Specifically, the TCPA restricts the use of an automated telephone dialing system (“ATDS”) to make a call to “any cellular telephone service . . . or any service for which the called party is charged for the call,” unless the call is made for emergency purposes or with “prior express consent of the called party.” FCC guidelines and courts interpretation of the TCPA’s consent requirements are settled law. However, this year the Ninth District shook things up with an expanded definition for an ATDS.

The TCPA defines an ATDS as equipment which has the capacity to (1) “store or produce telephone numbers to be called, using a random or sequential number generator”; and (2) to dial the stored or produced numbers. The courts have struggled on how to define an ATDS but have generally followed the statutory definition closely. On September 20, 2018, the Ninth Circuit in Marks v. Crunch, found that the definition of ATDS was ambiguous and the court defined ATDS as “equipment which has the capacity – (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator – and to dial such numbers automatically (even if the system must be turned on or triggered by a person.” The courts holding “marks a departure point for TCPA jurisprudence and one that is sure to have impact long after the [Federal Communications Commission (“FCC”)] has had its say.” On October 3, 2018, the FCC filed a public notice seeking comments on “how to interpret and apply the statutory definition of automatic telephone dialing system, including the phrase “using a random sequential number generator,” in light of the recent decision in Marks. The FCC provides a list of questions on which the public can provide comments. From the notice, it’s clear the FCC is unsure whether a smart phone that can store numbers has the capacity to automatically dial those numbers, and if it does have the capacity, does this make it an ATDS?

“Beto for Texas” Litigation

Early voting in Texas began on Monday, October 22, 2018. On Friday, October 19, 2018, Sameer Syed filed suit against “Beto for Texas.”

Beto O’Rourke is currently seeking to upend Ted Cruz from his U.S. Senate seat for an opportunity to represent Texas. O’Rourke came onto the scene putting on an unconventional political campaign race driven primarily by social media. He has made a point to visit all 254 counties in the state of Texas and has continued to gain volunteers and followers throughout these visits. In fact, some counties he has visited more than once. He has also gained attention for not employing a pollster or media consultant. His first political ad was produced entirely from iPhone footage collected during his campaign stops, and when it was first released, it was only airing online. On “Beto for Texas” the official political campaign site, supporters can sign up to receive real-time mobile updates from the campaign. The site does have a mobile alert terms and conditions page advising how to stop receipt of messages or get more information.

Mr. Syed is alleging he received nine text messages from “Beto for Texas” in violation of the TCPA. Mr. Syed alleges that the text messages were sent to his phone using an automated telephone dialing system (“ATDS”). Chris Evans, the campaign’s communication director told Bloomberg Law, that “Beto for Texas is “fully compliant with the law.” Mr. Evans assured that the campaign has thousands of Texans volunteering and contacting potential voters.

Is your equipment in compliance?

It seems that the legal community, as well as the FCC is unsure on how to proceed following Marks. What we have known is, that in order to determine whether the equipment you are using is an ATDS, you would consider the following:

  • Does your equipment have the ability to store numbers?
  • Does the equipment store or produce the number using a random or sequential number generator?
  • Does the equipment have the capacity to dial the stored numbers?

If you answered yes to the considerations above, the equipment is likely an ATDS. Now consider whether the equipment requires human intervention in order to dial the stored numbers? Prior to Marks the courts have held that equipment requiring human intervention to dial the stored numbers is likely not an ATDS. However, that determination will now depend on your circuit’s interpretation or application of the Marks decision.

Experts have tried to predict how each circuit will apply Marks and whether they will follow the decision. As for the 7th Circuit, they predict that the court will likely ignore Marks, citing a July 2018 ruling in which the district court held that predictive dialers do not qualify as an ATDS. Their prediction for the 5th Circuit is that they will also likely ignore Marks. Their predictions included an assessment of three cases decided within the last year that applied a relaxed consent definition and ruled in favor of the corporation initiating the communication.

What does this mean for your communication equipment? You should seek guidance from your legal counsel on how you should proceed, but it seems highly unlikely that the Marks definition will be applied in the majority of circuits. As for “Beto for Texas” and whether they will be in hot water for the alleged text messages, we’ll have to see how that plays out in court. Considering how Beto O’Rourke has chosen to run a lean and friendly campaign, supported by a large volunteer base, it seems unlikely that the campaign used an ATDS.