One of the few things that hasn’t changed significantly since our last TCPA update is, well, the TCPA. We have a new year, a new President and multiple new COVID vaccines.  And after the December oral argument in Facebook v. Duguid before the Supreme Court, 2021 could be the year when we receive clarity on the critical TCPA question of what constitutes an automatic telephone dialing system (“ATDS”).  Indeed, the argument seemed positive for the TCPA defense bar, with Justices Alito and Thomas chafing at the anachronistic nature of the statute and Justices Sotomayor and Gorsuch expressing concerns about the idea that every cellphone user could be subject to civil liability.  But for now, the TCPA litigation landscape remains the same bizarre, often inconsistent quagmire that it always has been.  We’ll continue to be your guide through the morass, and we summarize here developments since our last update, listed by issue category in alphabetical order.

Advertisement: In Podiatry In Motion, Inc. v. Interviewing Services of America, LLC, 2020 U.S. Dist. LEXIS 185087 (N.D. Ill. Oct. 5, 2020), the court concluded that a fax asking the recipient to complete a survey in exchange for a gift card did not constitute an advertisement under the TCPA and dismissed the action for failure to state a claim.  But in Mich. Urgent Care & Primary Care Physicians, P.C. v. Medical Sec. Card Co., 2020 U.S. Dist. LEXIS 223665 (E.D. Mich. Nov. 30, 2020), the court denied a motion to dismiss even though the fax at issue described a “free program that is not bought or sold.”

Arbitration:  One of the best ways to avoid TCPA class action liability is to establish that the plaintiff affirmatively opted into arbitration and class waiver.  But the recent decision in Shultz v. Ttac Publ’n, 2020 U.S. Dist. LEXIS 198834 (N.D. Cal.  October 26, 2020), shows the importance of making sure that consent is “clear and unmistakable.”  In that case, the website at issue had a pre-checked disclosure box, small font displaying the disclosure, and a “confusing” page that made the disclosure hard to find.  Id. at *4-5.  Accordingly, the court found that the plaintiff had not agreed to arbitration.  Id.

Article III standing:  In Daisy, Inc. v. Mobile Mini, 2020 U.S. Dist. LEXIS 175536 (M.D. Fla. September 24, 2020), the court evaluated the case of a plaintiff who claimed to have wasted time reviewing an unsolicited fax received via email.  In dismissing the complaint for lack of standing, the Court held that “[i]t is clear Congress did not view one wasted minute spent reviewing a junk fax received through email as a concrete injury.”  Id. at *18.  And in Grigorian v. FCA US LLC, 2020 U.S. App. LEXIS 38370 (11th Cir. Dec. 9, 2020), the 11th Circuit affirmed dismissal based on the fact that receipt of a single ringless voicemail did not cause “concrete harm.”  But in Williams v. Disability, 2020 U.S. Dist. LEXIS 211914, at *17 (W.D.N.C. November 12, 2020), the court denied a motion to dismiss based on the Article III standing, concluding that “the Court finds Plaintiff’s receipt of Defendant’s two unsolicited text messages asking Plaintiff to call Defendant to apply for disability benefits are the kind of harm the TCPA protects against.”

ATDS: Until the Supreme Court’s ruling, the question of what constitutes an ATDS will remain open for debate.  In Greiner v. Cadillac Accounts Receivable Mgmt., 2020 U.S. Dist. LEXIS 234221 (E.D. Mich. November 9, 2020), the court denied a motion for summary judgment despite the defendant’s compelling argument that the texts at issue were sent manually.  In Davis v. D.R. Horton, 2020 U.S. Dist. LEXIS 189726 (D. Del. October 13, 2020), the court held that the plaintiff’s ATDS allegations were sufficient to survive a motion to dismiss where the plaintiff alleged that the text messages at issue were sent using a CallFire dialer.  And in Friend v. Taylor Law, 2020 U.S. Dist. LEXIS 238481 (N.D. Ind. Dec. 18, 2020), the court denied summary judgment where the defendant’s witness could testify only that he “believed” the LiveVox system used by the defendant lacked the capacity to dial automatically as a predictive dialer.

Consent: In Lucoff v. Navient Sol., LLC, 2020 U.S. App. LEXIS 37868 (11th Cir. Dec. 4, 2020), the 11th Circuit affirmed a grant of summary judgment where the named plaintiff reconsented to receive automatic telephone dialing system and prerecorded calls by submitting the online demographic form in connection with a prior class action settlement.  And in Amadasun v. DataSearch, Inc., 2020 U.S. Dist. LEXIS 184697 (W.D. Tx. October 6, 2020), the court held that the provision of phone numbers to the original creditor as part of a credit transaction could was adequate to establish consent to the debt collectors who called the numbers.  But in Ramsey v. Receivables Performance Mgmt., LLC, 2020 U.S. Dist. LEXIS 236094 (S.D. Ohio Dec. 15, 2020), the defendant lost at summary judgment when it “assumed” it had consent to use an ATDS.

Constitutionality: One of the hottest TCPA issues in 2021 likely will be whether the TCPA is constitutional with respect to conduct occurring before July 6, 2020.  Starting with Creasy v. Charter Communications, 2020 U.S. Dist. LEXIS 177798 (E.D. La. Sept. 28, 2020), several courts have held that the entire TCPA was unconstitutional before July 6, 2020, when the Supreme Court struck down the “government-debt exception” in Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335 (2020).  The court in Creasy reasoned that the statutory provision at issue in the case was unconstitutional at the time the lawsuit was filed; thus, the court lacked subject matter jurisdiction.  Id. at *14-15.  At least two other courts have agreed.  See Lindenbaum v. Realgy, Inc., 2020 U.S. Dist. LEXIS 201572 (N.D. Ohio Oct. 29, 2020); Hussain v. Synergy, et al., Case No. 20-cv-00038, Doc. 74 (M.D. Fla. Dec. 11, 2020).  But at least five courts have rejected these arguments because Barr did not invalidate the entire statute, setting up a split among the district courts.  See Abramson v. Fed. Ins. Co., 2020 U.S. Dist. LEXIS 232937 (M.D. Fla.  December 11, 2020); Shen v. Tricolor Cal. Auto Grp., LLC, 2020 U.S. Dist. LEXIS 237582 (C.D. Cal. Dec. 17, 2020); Trullio v. Free Energy, Case No. 19-cv-02072-MCS-SP, Doc. No. 76 (C.D. Cal. Dec. 21, 2020); Rieker v. Nat’l Car Cure, LLC, 2021 U.S. Dist. LEXIS 9133 (N.D. Fla. Jan. 5, 2021); Stoutt v. Travis Credit Union, 2021 U.S. Dist. LEXIS 6019 (E.D. Cal. Jan. 12, 2021).