/>iReal quick one for the TCPA super nerds.
You’ll recall way back in April 2020 the world was melting down.
No, I’m not talking about COVID.
I am talking about ATDS cases.
Perhaps the high-water mark of TCPAWorld ATDS chaos struck on April 7, 2020 when the Second Circuit Court of Appeals followed the Ninth Circuit’s Marks decision and vastly expanded the definition of ATDS to include any system that could store phone numbers and dial them automatically.
Flash forward five years and, once again, the Ninth and Second Circuit Courts of Appeals are in accord on the ATDS definition– only this time it is COMPLETELY the opposite.
Contrary to the Supreme Court’s ruling in Facebook, these courts now hold that only systems that RANDOMLY CREATE TELEPHONE NUMBERS are an ATDS. But that’s not what Facebook held, at all.
Regardless, following Facebook the appellate courts were supposed to vacate their previous inconsistent rulings and on Wednesday the Second Circuit Court of Appeals finally got around to doing so– it only took it 4 years, 3 months and 8 days after the Facebook ruling to do so.
Hahaha.
Regardless what is very interesting about the panel remand is that it does not mention the Solimon ruling–issued by a different panel of the same court.
Hmmm.
Here’s is the complete remand order:
In Duran v. La Boom Disco, Inc., 955 F.3d 279 (2d Cir. 2020), vacated, 141 S. Ct. 2509 (2021), we held that to qualify as an “automatic telephone dialing system” within the meaning of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, a device must have the capacity either to store telephone numbers, regardless of how those numbers are stored, or to produce telephone numbers using a random or sequential number generator.
The Supreme Court vacated our judgment in Duran and remanded the case to this Court for further consideration in light of Facebook, Inc. v. Duguid, 592 U.S. 395 (2021). In Facebook, the Supreme Court held that to qualify as an automatic telephone dialing system under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator or to produce a telephone number using a random or sequential generator. Id. at 409.
For the foregoing reasons, the judgment of the District Court is VACATED, and the case is REMANDED for further proceedings consistent with Facebook.
Holy smokes.
Do you see what they did here?
This panel just SPECIFICALLY framed the holding of Facebook in a way that is inconsistent with the holding of Solimon and then directed the lower court to follow Facebook and not Solimon.
Now I could be overreading this, but on the heels of the Sixth Circuit’s recent ATDS ruling I am starting to get the heebie-jeebies here.
