Back in the 1970s (simpler times?) the Supreme Court issued a landmark decision in Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) identifying that a statute that is too vague to be understood by a person of average intellect cannot be enforced. A law, it was held, is excessively vague if it:

 impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Arbitrary application? Resolution on an ad hoc and subjective basis? You see where I’m going with this.

The TCPA’s ATDS definition remains convoluted beyond repair. TCPA liability has become the Shcrodinger’s cat of legal principles. Indeed, it is impossible to know whether your conduct is legal or illegal until you are sued. Then, depending on what court you are sued within—and sometimes depending on the judge in that court—the applicable ATDS standard will be determined and (if you have good lawyers) perhaps you can demonstrate that your system lacks the eye-of-the-beholder-esque human intervention necessary to escape statutory treatment.

This, of course, is the archetypical situation of a law being void for vagueness— the law is applied subjectively, arbitrarily and on a post hac basis.

Want proof?

Well on Monday of this week three different ATDS decisions were handed down looking at essentially the same technology– text message platforms. Yet each of the courts applied a different ATDS formulation.

First, a court in New Jersey decided that an ATDS must have the capacity to generate numbers randomly or sequentially but that such capacity need not be used to dial the numbers at issue. That is, even a manually dialed call might be deemed to have been made with an ATDS if the device from which it was sent had the capacity to generate numbers in that fashion. See  Rivero v. D’Jais, Civil Action No.: 18-12697 (FLW) (ZNQ), 2019 U.S. Dist. LEXIS 170246, (D. N.J.  Sept. 30, 2019). Indeed, In Rivero the Court carefully reviewed Dominguez and concluded, in essence, that Dominguez was little more than a “capacity” decision. That focus on “capacity” allowed the Court to conclude that messages that had been sent en masse –but not randomly or sequentially—were presumptively sent using an ATDS, at least at the pleadings stage.

Highlighting the amorphous nature of the ATDS definition, the Court noted that there was already a split of authority within the same Court on the issue. There is. Compare Fleming v. Associated Credit Servs., 342 F.Supp.3d 563 (D.N.J. 2018) (a predictive dialer is not an ATDS), with Wilson v. Quest Diagnostics Inc., No. 18-11960, 2018 WL 6600096 (D.N.J. Dec. 17, 2018). But the Court finds it “unnecessary to resolve” that split of authority—suggesting the Court has elected to adopt yet a third ATDS approach within a single district court. Yikes.

Meanwhile, on that same day, a Court in Nevada denied a Defendant’s motion for judgment on the pleadings using a different ATDS standard entirely. See Castillo v. Caesars Entm’t Corp., Case No.: 2:18-cv-02297-GMN-NJK, 2019 U.S. Dist. LEXIS 169810 (D. Nv. Sept. 30, 2019). There the Court applied the Marks formulation which does not look at random or sequential number generation at all. Rather all that is required is for a dialer to store numbers and call them “automatically” from a list. (The word “automatically” has still not been defined in the Ninth Circuit.) Because, once again, the texts were sent en masse, the Court concluded that the device had called from a list and—under Marks—that is, apparently all that is required.  

Swinging back across the country, still on the same day, a Court in Rhode Island departed entirely from the statutory definition or Marks and applied a “human intervention” rule gleaned from an FCC ruling from back in 2003. In Decapua v. Metro. Prop. & Cas. Ins. Co., C.A. No. 18-00590-WES 2019 U.S. Dist. LEXIS 168061 (D. R.I. Sept. 30, 2019) the Court concluded that texts sent by “a person physically inputting numbers, drafting a message, selecting recipients, choosing a date and time to send the message, and manually hitting a ‘send’ button” do not qualify as ATDS texts. So the texts in Decapua—which were mass-blasted telemarketing texts that undoubtedly violated the “spirit” of th TCPA—were deemed legal whereas the nearly identical texts sent by the defendants in Rivero and Castillo were deemed illegal.

At least the Decapua court had the good sense to declare the TCPA an “unusually confusing statute.” Yet the Court in Castillo specifically refused to delay ruling on the definition of ATDS pending an important FCC Public Notice proceeding designed to clarify this precise issue.

At this point TCPAWorld litigants really need to begin asking themselves, is this statute even enforceable anymore? With three courts applying three different standards on the same day, TCPA enforcement has become as arbitratry as the random-fire dialers the statute was designed to prevent.

Indeed, the TCPA has demonstrated its own “capacity” to randomly generate high-dollar exposure. Seems like something has to give here.