Hunton Retail Law Resource

Retailers, beware! The new wave in the fight against “robocalls” is coming, and it’s targeting telemarketing text messages. In the past six months, we have seen an uptick in activity at both the state and federal level to rein in telemarketing text messages, and companies using any kind of text messaging telemarketing will want to proceed with caution.

Since previous FCC interpretations of the Telephone Consumer Protection Act (“TCPA”) were invalidated by the DC Circuit in 2018, the definition of an “automatic telephone dialing system” (“ATDS”), has been hotly contested. The Ninth Circuit has held that merely calling numbers from a stored list is sufficient to meet the definition of an ATDS, while the Second and Third Circuits have at least indicated that the ability to generate numbers randomly or sequentially is the defining characteristic. Compare Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1043 (9th Cir. 2018), with Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018) and King v. Time Warner Cable, Inc., 894 F. 3d 473, 479 (2d Cir. 2018).