Dan Blynn published "The Current State of the TCPA's 'Automatic Telephone Dialing System' Definition" in the Law & Forms Guide of the 2019 ANA/BAA Marketing Law Conference, which was held on November 4-6 in San Diego. The following is an excerpt:
With its relatively low pleading requirements and high statutory damages ($500 per violative call or text message, which can be trebled to $1,500 if the violation is deemed by the court to be "willful or knowing"), the Telephone Consumer Protection Act ("TCPA") quickly has become a favorite statute amongst the plaintiffs' class action bar. In recent years, plaintiffs in TCPA class actions have extracted settlements that approach the $100 million mark and just a few months ago, an Oregon jury returned a verdict against a multi-level marketing company that sells weight-loss products and other nutritional dietary supplements in the amount of $925 million arising out of 1,850,436 unsolicited telemarketing calls the defendant placed to the class (although it may be merely academic, the court refused to treble those damages to $2.775 billion). Much of the TCPA litigation has been spurred on by the "significant fog of uncertainty" that surrounds whether a calling platform is an "automatic telephone dialing system" ("ATDS" or "autodialer") under the statute. For, if a defendant does not use an ATDS (and assuming that no prerecorded message is left for the recipient), then there is no violation of the TCPA's autodialer provisions. Indeed, it is not a violation of the TCPA to place a non-autodialed unsolicited call to a cell phone. In fact, it is not a TCPA violation to place hundreds of non-autodialed, unsolicited calls to a cell phone seriatim.