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Will More Clarity on Definition of ATDS Under TCPA Finally Be Here Soon?

The Sixth Circuit is the latest court to weigh in on the definition of ATDS under TCPA. The TCPA defines ATDS as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” Generally, the TCPA prohibits calls and text messages to cell phones using an ATDS without prior express consent.

In Gary v. Trueblue, Inc., although the Sixth Circuit did not explicitly define the meaning of ATDS, the court implicitly approved the district court’s rejection of the plaintiff’s argument that a system is ATDS just because it can operate without human intervention.  The lower court explained that “the TCPA does not prohibit the use of devices with automated functions.” Rather, “the statute requires a showing that the system has the capacity to randomly and sequentially dial or text phone numbers.”  In contrast, the Ninth Circuit has ruled that a device is an ATDS if it has the capacity to automatically dial phone numbers or send text messages from a stored list (unlike a manual click-to-dial/text system). You can read more about how these circuit courts’ analyzed the definition of ATDS here.

In light of these varied court opinions, organizations are anxious for the FCC to release its findings from its Public Notice period commenced nearly a year ago seeking comment on how to interpret and apply the meaning of ATDS. On the legislative front, the Stopping Bad Robocalls Act, could also bring more clarity to the definition of ATDS. This bill, which has passed the House, does not redefine ATDS, but would force the FCC to do so within 6 months of enactment.

Putting it Into Practice. While for the time being, existing caselaw and FCC rulings may continue to leave companies with little concrete guidance on how to determine if its equipment is an ATDS, defaulting to having suitable consent if the technology is viewed as an ATDS can be a solution. Remember, to be safe, consent should be written and signed where the autodialed message contains advertising.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IX, Number 270


About this Author

Shannon Z. Petersen, Business Trial Legal Specialist, Sheppard Mullin

Shannon Z. Petersen is a partner in the Business Trial Practice Group in the firm’s Del Mar office and is co-chair of the firm’s consumer class action defense team and the firm’s TCPA class action defense team.

Areas of Practice

Dr. Petersen has substantial trial experience as a business litigator, including consumer class action defense. He has successfully represented clients in claims involving the federal Telephone Consumer Protection Act (TCPA), the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Acting (FCRA), the Truth in Lending...

Liisa Thomas, Sheppard Mullin Law Firm, Chicago, Cybersecurity Law Attorney

Liisa Thomas, a partner based in the firm’s Chicago and London offices, is Co-Chair of the Privacy and Cybersecurity Practice. Her clients rely on her ability to create clarity in a sea of confusing legal requirements and describe her as “extremely responsive, while providing thoughtful legal analysis combined with real world practical advice.” Liisa is the author of the definitive treatise on data breach, Thomas on Data Breach: A Practical Guide to Handling Worldwide Data Breach Notification, which has been described as “a no-nonsense roadmap for in-house and external practitioners alike.”

She is known as an industry leader in the privacy and data security space and is consistently recognized by Leading Lawyers Network, Chambers and The Legal 500, and leading publications and organizations for her work in this area of law. Liisa was recently recognized as the 2017 Data Protection Lawyer of the Year - USA by Global 100, the 2017 U.S. Data Protection Lawyer of the Year by Finance Monthly, and the “Best in Data Security Law Services” at Corporate LiveWire’s 2017 Global Awards.

Lisa Yun, Trial Practice, Bankruptcy, Attorney, Sheppard Mullin, Law Firm,

Lisa Yun is an associate in the Business Trial Practice Group in the firm's San Diego office.

Ms. Yun practices in the area of general business litigation and bankruptcy law.  She has experience representing financial institutions in civil and bankruptcy proceedings.  Ms. Yun has also successfully represented clients in class action claims involving the federal Telephone Consumer Protection Act (TCPA).


Julia Kadish is an attorney in the Intellectual Property Practice Group in the firm's Chicago office.

Areas of Practice

Julia's practice focuses on data breach response and preparedness, reviewing clients' products and services for privacy implications, drafting online terms and conditions and privacy policies, and advising clients on cross-border data transfers and compliance with US and international privacy regulations and standards. She also workes on drafting and negotiating software licenses, data security exhibits, big data licenses, professional...