There still have been no district- or appellate-level cases defining an ATDS since ACA from the Fourth and, most notably, Fifth circuits, and while opinions from district courts in the Seventh Circuit experienced a slight uptick this past month, there are still surprisingly few opinions from courts within that circuit, considering the number of TCPA cases filed there. A little over half of the district court cases we have reported on have found that there was an ATDS when applying ACA, about a third have held that ACA invalidated all prior FCC orders defining an ATDS, and about one-fifth have found that human intervention was a deciding factor as opposed to just the 2015 order discussed in ACA. However, the First Circuit got its first post- ACA ATDS decision coming from Massachusetts, so perhaps a decision from that appellate court may not be far behind. Notably, at present we have had appellate-level opinions from only the Second, Third and Ninth circuits. To add fuel to the fire, the FCC has not issued any new guidance on the topic, thus leaving the TCPA litigation world in a state of confusion.
This past month alone, there has been a flurry of ACA-related activity in the courts. Circuit changed the face of litigation in the Telephone Consumer Protection Act world by striking down the Federal Communication Commission’s 2015 automatic telephone dialing system guidance, courts remain split on what constitutes an ATDS.
One year after the ACA International ( ACA) decision from the D.C.
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