IRVINE, CALIF.—The question of “What constitutes an autodialer?” has been at the heart of Telephone Consumer Protection Act (TCPA) litigation for some time, with various federal courts reaching different conclusions about this question. The US Court of Appeals for the Eleventh Circuit is the latest court to weigh in, and Womble Bond Dickinson attorney Artin Betpera discussed the latest developments with Bloomberg Law’s Privacy & Data Security Law News and Law360.
On Jan. 27, the Eleventh Circuit held that the TCPA defines autodialers as devices that use randomly or sequentially generated phone numbers. A Florida plaintiff alleged that a timeshare marketer called her repeatedly about vacation opportunities, while a Georgia plaintiff alleged that she received 35 calls about unpaid student loans. However, the Eleventh Circuit ruled that the calls in question did not violate then TCPA, because the devices used did not meet the definition of “autodialers”.
“‘The Eleventh Circuit has provided us with a thoughtful opinion on the proper interpretation’ of the definition of autodialer,” Betpera tells Privacy & Data Security Law News. He added that the autodialer question ““is at the heart of almost every one of the thousands of federal TCPA lawsuits filed each year.”
“The Eleventh Circuit has provided us with a thoughtful opinion on the proper interpretation’ of the definition of autodialer. The autodialer question is at the heart of almost every one of the thousands of federal TCPA lawsuits filed each year.”
The Ninth Circuit defined autodialers on significantly broader terms in a 2018 decision. With such a split existing in the federal courts, many TCPA observers believe that the Supreme Court ultimately will need to resolve this question.
However, that decision may not be forthcoming soon. The Supreme Court is scheduled to hear a TCPA case with First Amendment implications. But Betpera tells Law360 that the autodialer issue is “far more confined to the TCPA, which may make it a less attractive case for the Supreme Court to review despite the clear circuit split on the matter.”
He added that the divide in the federal courts “really highlights the need for the FCC to step in and set a national standard to ensure consistency and predictability in the law by adopting the [Eleventh Circuit's] analysis.”
But in the meantime, Betpera said “This opinion will take a big chunk out of TCPA cases in the Eleventh Circuit’s footprint, including states like Florida that have been a hotbed of litigation.”
However, he noted that “the TCPA’s rules concerning prerecorded messages, faxes, and calls to numbers on that national do-not-call registry remain untouched, meaning it will be business as usual when it comes to these facets of the TCPA.”
Click here to read, “Eleventh Circuit Robocall Decision Highlights ‘Autodialer’ Split” in Privacy & Data Security Law News.
Also, keep up with all the latest TCPA-related news at Womble Bond Dickinson’s TCPA Defense Force blog.
Artin Betpera is a partner and trial lawyer with a national practice principally representing financial services companies in litigation in federal and state courts, involving both class and individual claims. He has developed a particular focus on Telephone Consumer Protection Act litigation, but has significant experience in traditional commercial litigation, and regularly appears on behalf of some of the country’s most significant banks and financial institutions.