Court Grants Summary Judgment on ATDS Issue

The District of Arizona recently became one of the first courts in the nation to address the definition of an “automatic telephone dialing system’ (“ATDS”) following the recent D.C. Circuit ruling in ACA International v. FCC (D.C. Cir. 2018). In ACA, the D.C. Circuit, inter alia, rejected the FCC’s definition of ATDS. It held that the FCC’s definition of “capacity” was overly broad and that defining “capacity to autodial” to include any device that can autodial could include smartphones.

In Herrick v. GoDaddy, plaintiff’s putative class action alleged that defendant violated the Telephone Consumer Protection Act when it transmitted an unsolicited text message. The U.S. District Court for the District of Arizona granted defendants motion for summary judgment because it concluded that it did not use an ATDS to send the text message in question.

In doing so, the court relied upon the language of the statute and concluded that a device must itself have the capacity “to store or produce telephone numbers using a random or sequential number generator.” The court explained that “[b]roadening the definition of an ATDS to include any equipment that merely stores or produces telephone numbers in a database would improperly render the limiting phrase ‘using a random or sequential number generator’ superfluous.” Therefore, “[t]he statute … requires that the numbers be stored or produced using a random or sequential number generator.”

Interestingly, the court also considered whether a device must have the capacity to dial numbers without human intervention in order to be considered an ATDS. The court concluded that a reasonable interpretation of the TCPA statute is that “a device will only constitute an ATDS if it can dial numbers – or send text messages – without human intervention, and that the platform in question did not qualify as an ATDS.

The court found that the platform did not have the ability to store or produce numbers using a random or sequential number generator because numbers that were called could only be inputted into the platform by a pre-programed file or a list provided by the user, the platform could not randomly or sequentially generate these numbers by itself, and in order to re-program that platform to have this capacity, a user would have to do much more than simply press a button. Additionally, the court held that the platform did not qualify as an ATDS because to do so would require “essential human intervention.”

Critically, GoDaddy established that there were numerous stages in the transmission process that required human intervention, including the provision of a list of telephone numbers to the platform provider, the manual selection of telephone numbers to contact, the selection of the time and date to send text messages, and the entry of code to authorize transmission.

Takeaway: Following the ACA decision, telemarketers may more easily be able to successfully defend TCPA claims. Dialing equipment may not qualify as an ATDS when the device cannot randomly or sequentially generate numbers, or call numbers without essential human intervention.

Richard B. Newman is an FTC compliance lawyer at Hinch Newman LLP.  Email him at and follow him on LinkedIn

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Richard B. Newman

Richard B. Newman is a nationally recognized FTC advertising compliance, CID investigation and regulatory enforcemetn attorney. He regularly provides advertising counsel and represents clients in high-profile investigations and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard is also an ecommerce lawyer and spam defense attorney. His practice additionally focuses upon false advertising defense, data privacy, cybersquatting, intellectual property law and transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements. Richard advises clients on how to minimize the legal risks associated with digital marketing, email marketing, telemarketing, social media influencer campaigns, endorsements and testimonials, negative option marketing models, native advertising, online promotions and comparative advertising,

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