![]() 2019) (noting that “text messages, while different in some respects from the receipt of calls or faxes specifically mentioned in the TCPA, present the same ‘nuisance and privacy invasion’ envisioned by Congress when it enacted the TCPA”). Moreover, an unwanted text message is, for standing purposes, an injury-in-fact. qualifies as a ‘call’ within the compass of. It is undisputed that “ text message to a cellular telephone. This is because of a simple definitional question that pervades TCPA litigation in our Circuit and others: what exactly is an ATDS? 5 It is this very question that is before us here. 4 But what is at heart a straightforward law-giving individuals a right to sue for this kind of intrusive advertising-has become complex to enforce. Predictably, the TCPA has created much litigation from consumers seeking to redress the all-too-common injury of having received an unwanted phone call or text message. 3 be deterred from undertaking ATDS-fueled advertising campaigns- and that American cell phone users would have fewer “rings” and “buzzes” interrupting their days. Painting the picture more fully, Senator Hollings noted that telemarketers “wake us up in the morning they interrupt our dinner at night they force the sick and elderly out of bed they hound us until we want to rip the telephone right out of the wall.” 137 Cong. 3 By creating such a private cause of action, the hope was that telemarketers would These oft-quoted words come from the Telephone Consumer Protection Act’s lead sponsor, Senator Ernest F. Specifically, the TCPA permits a recipient to sue any caller if that caller used an automatic telephone dialing system (“ATDS”) to reach the recipient’s cell phone, with some exceptions. 1 Alarmed that unsolicited advertising calls were inundating the phones of average Americans, it passed the Telephone Consumer Protection Act (“TCPA”), 2 prohibiting certain kinds of calls made without the recipient’s prior consent. CABRANES, Circuit Judge: In 1991, Congress set out to cure America of that “scourge of modern civilization”: telemarketing. ![]() Aab, New York, NY, for Defendant-Appellee. Lee, Lee Litigation Group, PLLC, New York, NY, for Plaintiff-Appellant. ![]() Accordingly, we VACATE the District Court’s judgment and REMAND the cause for further proceedings consistent with this opinion. Because we determine that LBD’s systems meet both statutory requirements, we conclude that the systems qualify as ATDSs. The District Court concluded that the dialing systems used by LBD meet only the first of these two statutory requirements and therefore are not ATDSs. § 227(a)(1)(A), and the capacity “to dial such numbers” id. To qualify as an ATDS, a dialing system must have both the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator” 47 U.S.C. District Court for the Eastern District of New York (Allyne R. Duran appeals from a grant of summary judgment in the U.S. But if LBD did not do so-if it used some non-ATDS technology to send its texts-then Duran has no case. If LBD did do so, then it is liable to Duran under the TCPA. Of course, only one party can be right: either LBD used ATDSs, or it did not. ![]() LBD acknowledges that it sent the messages, but counters that its actions were not prohibited by the TCPA because the texting platforms used to send them were not, in fact, ATDSs. (“LBD”), all sent using Automatic Telephone Dialing Systems (“ATDSs”) in a way prohibited by the Telephone Consumer Protection Act of 1991 (“TCPA”). Plaintiff-Appellant Radames Duran (“Duran”) claims that he received, over the course of more than a year-and-a-half, hundreds of unsolicited text messages from Defendant-Appellant La Boom Disco, Inc. On Appeal from the United States District Court for the Eastern District of New York SUBMITTED: DECEMDECIDED: APBefore: CABRANES and LOHIER, Circuit Judges, and REISS, District Judge.* * Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by designation. 19-600-cv RADAMES DURAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellant, v. In the United States Court of Appeals for the Second Circuit AUGUST TERM 2019 No.
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