Here’s a bit of a throwback.

In Cupp v. ABC-Amega, Inc., 2025 WL 2807312 (N.D. Cal. Oct. 2, 2025) a dude sued for unwanted calls he claims were made by an ATDS.

In the Ninth Circuit the standard for demonstrating ATDS usage is extremely high– you have to be using a system with the capacity to randomly generate phone numbers. While a lot of systems have the capacity to randomly generate numbers, randomly generating phone numbers is pretty uncommon.

Regardless, Cupp claimed in his “layman’s understanding [is] that the only software or equipment that does not have the ATDS ‘CAPACITY’ is a hard-wired old type of rotary phone” for which “[n]othing can plug in or add or change the system.”

That really takes me back.

For the TCPAWorld old timers, there was a time when this argument had legs.

Following the famous 2015 TCPA omnibus ruling, the FCC famously expanded the definition of ATDS to include any system with the potential capacity to operate as an ATDS, and in footnote 63 suggested that every software-enabled dialing device has such capacity.

My goodness. What a mistake.

In those days ATDS cases came in hot and heavy– though still not as frequently as TCPA cases are filed today– and good luck trying to convince a court your weren’t using one.

Indeed, only “hard-wired old type of rotary phone” were safe to use back then.

But times are very different now.

The Omnibus was set aside by the D.C. Circuit Court of Appeals. Then the Supreme Court put the ATDS genie back in the bottle by confirming ROSNG capacity is key. Then the Ninth and Second circuits all but eliminated ATDS cases by requiring ROSNGs to generate full phone numbers and–for good measure– the Supreme Court destroyed the rule courts must defer to FCC opinions, not once but twice.

So yeah, Cupp is very, very wrong on the legal standard today– but it is nice to reminiscence I suppose.

In the end the court dismissed his claims finding that his argument lacked authority and his complaint lacked allegations demonstrating ATDS usage.

Separately, I am already getting a bit tired of warning everyone our rates are jumping soon.