A New TCPA King? Second Circuit Rejects “Potential Capacity” Definition Outright But Ducks Issues of ATDS Functionality

In the second Court of Appeals decision to reach the TCPA’s definition of ATDS this week, the Second Circuit Court of Appeals held today in King v. Time Warner Cable,Case No. 15-2474-c, 2018 U.S. App. LEXIS 17880 (2nd Cir. 2018) that the TCPA governs only calls made by devices with the current “capacity” to perform the functions of an ATDS. Yet the Court refused to identify just what those required functionalities actually are.

Setting up the analysis, the district court had relied upon the FCC’s now-defunct TCPA Omnibus ruling in determining that the device Time Warner used to make the challenged calls had the “potential capacity”–whatever that means–to randomly or sequentially generate numbers and dial them. The district court granted summary judgment to the Plaintiff on that basis and Time Warner appealed challenging that its device lacked the present capacity to place calls in random or sequential fashion.

The Second Circuit panel begins its analysis of the appeal by finding that the ACA Int’l opinion overruled the Omnibus ruling relied upon by the district court and that the ACA Int’l opinion was binding on it and all other circuit courts of appeals and district courts under the Hobbs Act on that issue: “challenges to the 2015 Order were assigned to the D.C. Circuit, which thereby became ‘the sole forum for addressing . . . the validity of the FCC’s’ order.” King at *9. Thus the King court rejects the district court’s application of the FCC’s Omnibus ruling to the dispute before it and “must decide independently” what the required “capacity” is under the TCPA.

View this content by subscribing

Please register to unlock this content

I already have an account. Log in