Divided Second Circuit Holds Texts to Pre-Existing List of Numbers Not Covered by TCPA

The Telephone Consumer Protection Act (TCPA) regulates unsolicited calls using “any automatic telephone dialing system [(ATDS)] or an artificial or prerecorded voice.”  The statute defines an automatic telephone dialing system as “equipment which has the capacity…to store or produce telephone numbers to be called, using a random or sequential number generator; and…to dial such numbers.”

Several cases have arisen where marketing messages were sent via “a system that autodials numbers randomly drawn from a pre-existing list of telephone numbers.” Joining three other courts of appeals, on Friday, over a partial dissent, the Second Circuit held that such a system does not meet the statutory definition of an ATDS, and thus messages received through such a system are not covered by the TCPA.

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