Duran v. La Boom Disco, Inc.
955 F.3d 279
2d Cir.2020Background
- Duran voluntarily texted a code from an LBD Facebook ad and thereafter received many unsolicited promotional texts over ~18 months; he sued under the TCPA seeking damages per message.
- LBD admitted sending the texts via two third-party platforms (ExpressText and EZ Texting) but claimed those platforms were not automatic telephone dialing systems (ATDSs) under the TCPA.
- The TCPA defines an ATDS as equipment with two capacities: (1) "to store or produce telephone numbers to be called, using a random or sequential number generator," and (2) "to dial such numbers."
- The district court granted summary judgment for LBD, holding the platforms were not ATDSs because a human determined when messages were sent (i.e., too much human intervention).
- On de novo review, the Second Circuit analyzed (1) whether stored, human-generated lists meet the statutory "store or produce" clause and (2) whether requiring a human to initiate a campaign prevents a system from "dialing" automatically.
- The Second Circuit concluded both platforms satisfy both statutory capacities, vacated the district-court judgment, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute's phrase "store or produce...using a random or sequential number generator" permits dialing from human-generated stored lists | Stored lists suffice; the statute's "store" term is independent of the random/sequential qualifier | The qualifier modifies both "produce" and "store," so only numbers generated by a random/sequential generator qualify | "Store" is separate; systems that store human-generated lists meet the statutory first capacity (ATDS can call from stored lists) |
| Whether the systems have the capacity "to dial such numbers"—i.e., whether human initiation (upload, scheduling, clicking "send") defeats automatic dialing | Clicking "send" merely initiates; the actual dialing/connecting proceeds automatically, so the systems dial without human intervention | Human actions (message upload, scheduling, manual initiation) mean the systems are not automatic | Human initiation (e.g., clicking "send") is insufficient to defeat automatic dialing; the systems can dial without human intervention and thus meet the second capacity |
| Role of FCC interpretations and prior precedent in construing ATDS scope | FCC orders support a broad reading covering stored-list dialing and are persuasive | Some courts have limited or invalidated later FCC refinements; defendant emphasized narrower readings | The court treated pre-2015 FCC orders (2003/2008/2012) as persuasive support for a broad interpretation that includes stored-list dialing; those orders remain relevant |
Key Cases Cited
- Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (Sup. Ct. 2016) (texts qualify as "calls" under the TCPA)
- PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (Sup. Ct. 2019) (discussed administrative deference to FCC rulemaking)
- Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) (ATDS can dial from stored lists)
- Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020) (interpreting "store or produce" more narrowly)
- Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301 (11th Cir. 2020) (narrow reading of ATDS definition)
- Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) (construction of ATDS definition)
- King v. Time Warner Cable Inc., 894 F.3d 473 (2d Cir. 2018) (addressed "capacity" in TCPA; distinguished here)
- ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687 (D.C. Cir. 2018) (set aside aspects of 2015 FCC Order; did not invalidate earlier FCC orders)