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Not So Appealing: Key(es) TCPA ATDS Decision Headed for the Sixth Circuit Court of Appeal

As the Baron reported a few weeks back, the Eastern District of Michigan handed us a great case on ATDS functionality. Keyes v. Ocwen Loan Servicing, No. 17-cv-11492, 2018 U.S. Dist. LEXIS 138445, at *15 (E.D. Mich. Aug. 16, 2018).

In Keyes, the court held that ACA Int’l set aside the FCC’s rulings regarding “the functions an autodialer must be able to perform, namely its interpretation of whether a device needed to be able to generate and call random or sequential numbers to constitute an ATDS.” As such, it determined that ACA Int’l vacated the FCC’s definition of the functions necessary for a device to constitute an ATDS. The court went on to conclude that Defendant’s Aspect system did not possess the functions necessary to qualify as an ATDS because the system dialed from a set list, which “is not the same as dialing numbers using a random or sequential number generator.”

However, since this is TCPAland after all, good news only lasts so long. This week, the Plaintiff appealed the district court’s decision to the United States Court of Appeals for the Sixth Circuit. They really wasted no time in doing so since the deadline to seek appellate review is still weeks away.

Keyes represents a major appellate case as the Sixth Circuit Court of Appeal has not yet been asked to weigh in on the TCPA’s definition of ATDS. 

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About this Author

Susan Nikdel, Womble, litigation attorney

Susan represents clients in commercial and financial services litigation, particularly Telephone Consumer Protection Act (TCPA) cases. She is part of a team that has handled more than 600 TCPA cases, including more than 50 national class actions.

Prior to beginning her legal career, Susan served as a Judicial Extern for the Honorable Theodor C. Albert in the U.S. Bankruptcy Court, Central District of California.  She is a Certified Mediator.

Susan is fluent in Farsi/Persian and conversational in Spanish.