b'Telephone Consumer Protection ActThis year companies finally got clarity on the meaningIn April 2021, as described more fully in the section of an automatic telephone dialing system (ATDS)below, the Supreme Court resolved the circuit split from the U.S. Supreme Court in a landmark decisionby holding that the more narrow interpretation of the that helped stem the tide of TCPA litigation underdefinition of an ATDS was correct. Since then, district the statutes ATDS provision. On the heels of thatcourts have applied the Supreme Courts holding to decision, however, the Florida legislature quicklydispose of TCPA cases at the summary judgment stage passed legislation designed to unwind the Supremeof litigation, and the plaintiffs bar has had to be more Courts decision with respect to certain calls and textsselective in bringing TCPA suits alleging violations of the to Florida residents, resulting in a new wave of classstatutes ATDS provision.actions in that state. And, in 2021 the FCC issuedAdditionally, the FCC has continued its trend of two new orders placing new restrictions on certainenhancing consumer protection against unlawful automated and prerecorded calls. robocalls. At the tail-end of 2020, the FCC issued two orders implementing restrictions relating to automated Key Trends calls, text messages, and certain calls to residential landlines, and expanding its efforts to allow telephone TCPA litigation remained a favorite of the plaintiffs barcarriers to block robocalls.in 2021, with almost 1,400 new TCPA complaints filed between January 1, 2021 and September 30, 2021. That number was, however, about half of the number of TCPA2021 Highlightslawsuits filed in 2020. The likely explanation for theSupreme Court Enters Landmark Business-Friendly decrease is the U.S. Supreme Courts landmark decisionDecision in Facebook, Inc. v Duguid to Narrow resolving the issue of what constitutes an ATDS underDefinition of Autodialerthe TCPA.In April, the U.S. Supreme Court resolved a circuit split As described in Goodwins 2020 Review, the ATDSon what technology constitutes an ATDS under the issue had been hotly contested in courts across theTCPA in the class action suit Facebook, Inc. v. Duguid, country following the D.C. Circuits 2018 ruling in ACAet al., No. 19-511. The Supreme Court unanimously International v. FCC, No. 15-1211, finding that the FCCsruled that to qualify as an ATDS, a device must have definition of an ATDS was overly broad. After the ACAthe capacity either to store a telephone number using International decision, and leading up to the Supremea random or sequential generator or to produce a Courts decision to adopt a narrow definition, the circuittelephone number using a random or sequential courts were split as to whether a broad or more limitednumber generator, thus rejecting the expansive construction of the definition of an ATDS under the TCPAinterpretation of the statutory ATDS definition was appropriate. The Second Circuit, Sixth Circuit, andpreviously endorsed in some circuits.Ninth Circuit all took the position that a device was anThe TCPA defines an ATDS as equipment which has the ATDS when it stored numbers to be automatically dialed,capacity(A) to store or produce telephone numbers which would encompass most modern smartphones.to be called using a random or sequential number In contrast, the Third Circuit, Seventh Circuit, andgenerator; and (B) to dial such numbers. Before the Eleventh Circuit each took a more narrow constructionSupreme Court decision in April, some circuit courts of the TCPA, holding that a device must be capable of(D.C., Third, Seventh and Eleventh) had followed the storing or producing phone numbers using a random orstatutory definition, holding that that equipment qualifies sequential number generator to qualify as an ATDS. 1 This data as of September 2021, per WebRecon.24'