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Duran v. La Boom Disco, Inc.

United States Court of Appeals for the Second Circuit

December 13, 2019, Submitted; April 7, 2020, Decided

No. 19-600-cv

Opinion

JosÉ A. Cabranes, Circuit Judge:

In 1991, Congress set out to cure America of that "scourge of modern civilization": telemarketing.2 Alarmed that unsolicited advertising calls were inundating the phones of average Americans, it passed ] the Telephone Consumer Protection Act ("TCPA"),3 prohibiting certain kinds of calls made without the recipient's prior consent. Specifically, the TCPA permits a recipient to sue any caller if that caller used an automatic telephone dialing system ("ATDS") to reach the recipient's cell phone, with some exceptions.4 By creating [*3]  such a private cause of action, the hope was that telemarketers would be deterred from undertaking ATDS-fueled advertising campaigns—and that American cell phone users would have fewer "rings" and "buzzes" interrupting their days.

Predictably, the TCPA has created much litigation from consumers seeking to redress the all-too-common injury of having received an unwanted phone call or text message.5 But what is at heart a straightforward law—giving individuals a right to sue for this kind of intrusive advertising—has become complex to enforce.

This is because of a simple definitional question that pervades TCPA litigation in our Circuit and others: what exactly is an ATDS?6

It is this very question that is before us here.

Plaintiff-Appellant Radames Duran ("Duran") claims that he received, over the course of more than a year-and-a-half, hundreds of unsolicited text messages from Defendant-Appellee La Boom Disco ("LBD"), a nightclub in Queens, New York, all sent using ATDSs. LBD acknowledges that it sent the messages, but counters that its actions were not prohibited by the TCPA because the texting platforms it used to send them were not, in fact, ATDSs. Of course, only one [*4]  party can be right: either LBD used ATDSs, or it did not. If LBD did do so, then it is liable to Duran under the TCPA. But if LBD did not do so—if it used some non-ATDS technology to send its texts—then Duran has no case.

So which is it?

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2020 U.S. App. LEXIS 10861 *; 955 F.3d 279

RADAMES DURAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellant, v. LA BOOM DISCO, INC., Defendant-Appellee.

Prior History:  [*1] On Appeal from the United States District Court for the Eastern District of New York.

Plaintiff-Appellant Radames Duran ("Duran") claims that he received, over the course of more than a year-and-a-half, hundreds of unsolicited text messages from Defendant-Appellant La Boom Disco, Inc. ("LBD"), all sent using Automatic Telephone Dialing Systems ("ATDSs") in a way prohibited by the Telephone Consumer Protection Act of 1991 ("TCPA"). LBD acknowledges that it sent the messages, but counters that its actions were not prohibited by the TCPA because the texting platforms used to send them were not, in fact, ATDSs. Of course, only one party can be right: either LBD used ATDSs, or it did not. If LBD did do so, then it is liable to Duran under the TCPA. But if LBD did not do so—if it used some non-ATDS technology to send its texts—then Duran has no case.

Duran appeals from a grant of summary judgment in the U.S. District Court for the Eastern District of New York (Allyne R. Ross, Judge) in favor of LBD. To qualify as an ATDS, a dialing system must have both the capacity "to store or produce telephone numbers to be called, using a random or sequential number generator[,]" 47 U.S.C. § 227(a)(1)(A), and the capacity "to [*2]  dial such numbers[,]" id. § 227 (a)(1)(B). The District Court concluded that the dialing systems used by LBD meet only the first of these two statutory requirements and therefore are not ATDSs. Because we determine that LBD's systems meet both statutory requirements, we conclude that the systems qualify as ATDSs. Accordingly, we VACATE the District Court's judgment and REMAND the cause for further proceedings consistent with this opinion.

Duran v. La Boom Disco, Inc., 369 F. Supp. 3d 476, 2019 U.S. Dist. LEXIS 30012 (E.D.N.Y., Feb. 25, 2019)

CORE TERMS

dialing, numbers, programs, stored, sequential, messages, lists, automatic, generator, telephone, qualify, texts, predictive, random, text message, dialers, phone, clicking, statutory interpretation, telephone number, sequential-number-generator, random-or, campaign, button, verb, phone number, number-generator, human-generated, telemarketers, advertising

Antitrust & Trade Law, Consumer Protection, Telemarketing, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Civil Procedure, Appeals, Standards of Review, De Novo Review, Governments, Legislation, Interpretation