Leadscon, the premier conference for networking, education, and premium content focused on the performance and lead generation industry, recently published an article by FTC advertising compliance attorney Richard B. Newman about the District of Nevada granting summary judgment to CBE Group, Inc. on a TCPA claim.
Notably, the District of Nevada relied upon the ACA International v. FCC decision and found that CBE’s Manual Clicker Application (“MCA”) was not an automatic telephone dialing system.
The court also dismissed plaintiff’s argument that somehow it was LiveVox that placed calls, stating “there is no evidence, or legal authority, suggesting that LiveVox’s ability to track calling information means that the system has the capacity to store or produce numbers to be called using a random or sequential number generator.”
Ultimately, the court held that the undisputed facts showed that CBE did not use an ATDS to place calls to plaintiff’s cell phone.
The ACA v. FCC decision has simplified the analysis of “capacity” and for what will and will not be considered an ATDS.
Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777.