TCPA litigation is running rampant in courts throughout the country.  Automatic telephone dialing systems, or “ATDSs” or “autodialers”, are at the heart of virtually every TCPA case involving cell phones.  Why?  Because if a call to a person’s cell phone was not made with an ATDS as defined by the statute, there is virtually no liability under the TCPA.  At the heart of what constitutes an ATDS lies the term “capacity” as it is used in the statutory definition of “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator  … .”  See 47 U.S.C. § 227.  Some courts have interpreted the term capacity broadly, to encompass virtually every electronic device capable of storing and dialing a telephone number.  Others, including a recent decision from the Southern District of Florida, have found that an ATDS should be narrowly construed under the TCPA.

In De Los Santos v. Millward Brown, Inc., the court denied the defendant’s motion to dismiss based in part on a challenge to the constitutionality of the TCPA.  See Order Denying Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint, Case No. 13-80670-CV-MARRA , Dkt. No. 66 (S.D. Fla. June 30, 2014).  In so doing, the court followed a line of cases finding that the term “capacity” means “present, not potential capacity.”  The court rejected the defendant’s argument that almost all phones constitute autodialers, finding that “[i]f autodialers included smartphones or if autodialers included computers, then Defendant could argue for overbreadth.  However, as of yet, no court, nor this one, will interpret the TCPA so broadly.”

Possibly as important as the Order itself is the brief filed by the United States in support of the constitutionality of the TCPA.  See id., Dkt. No. 54.  In its memorandum, the United States asserted that the TCPA is narrowly tailored to the substantial government interests of protecting privacy and reducing the number of costly and intrusive calls to consumers.  The government rejected the defendant’s argument that the ATDS definition “encompasses many, if not most devices used by ordinary people to place ordinary calls.”  Rather, the United States cited In re Jiffy Lube for the proposition that iPhones and Blackberries do not constitute autodialers.  See In re Jiffy Lube Int’l, Inc., 847 F. Supp. 2d 1253 (S.D. Cal. 2012).  The government also provided an explanation for Congress’s broad and much criticized use of the term “capacity,” stating that Congress sought to avoid circumvention of the prohibition on unsolicited calls while also ensuring that the statute would apply to new technologies.  See n. 5.  Perhaps as a cloaked advisory, the United States commented that there are “multiple alternative avenues for entities to reach their target audiences other than unsolicited calls to cell phones,” including making live solicitation calls and obtaining consumer consent.

This opinion is good news for defendants for a few reasons.  First, it limits the application of the TCPA to dialing systems that have the present – rather than the potential – ability to autodial telephone numbers.  Thus, if a system has a theoretical ability to store or sequence numbers, but is not presently able to do so, it may not constitute an ATDS under De Los Santos.  Second, the court’s opinion and the memorandum from the United States are a signal to the FCC that courts and consumers can benefit from additional guidance concerning what constitutes an ATDS under the TCPA.