U.S. Court of Appeals Defines 'Capacity' in the TCPA

The Second Circuit of the U.S. Court of Appeals recently defined what “capacity” means in regards to automatic telephone dialing systems (ATDS) under the Telephone Consumer Protection Act (TCPA). The court now says that “capacity” is restricted to a device’s current functions, regardless of any modifications to the device’s system. This opinion from the Second Circuit may affect ongoing TCPA violation lawsuits across America.

Under the TCPA, for a device to qualify as an autodialer it must have the “capacity” to dial random numbers to be considered a violation of the Act. Software changes and other modifications to the device do not apply when considering whether or not a device has the capacity to be an ATDS.

This definition comes after two cases that relied heavily on what constituted an ATDS. In the ACA International case, the U.S. Court of Appeals for the District of Columbia Circuit recently invalidated the FCC’s 2015 ruling that defining “capacity” during a case requires consideration about potential modification and software updates to the device.

The ACA International case played a part in the appeal of the King vs. Time Warner Cable case, in which plaintiff Araceli King was granted summary judgment on her claim that Time Warner Cable used an ATDS to call her. During the appeal of the King case, the D.C. Circuit decided on ACA International, calling the previous ruling into question.

Under these new guidelines, the Second Circuit handling the King vs. Time Warner Cable case decided that it could not determine if Time Warner Cable’s autodialing system had the capabilities of an ATDS. The case has been remanded to the district court for further consideration.


The TCPA protects consumers from receiving calls from an autodialing system. ATDS systems are electronic devices that automatically dial telephone numbers and use a prerecorded message to speak with an individual. As long as the consumer has not given consent to the autodialing system, companies are prohibited to use them to contact that person.

Solicitors use a range of tactics to contact individuals, but they must follow the TCPA. Some rules solicitors must follow under the TCPA include:

  • Calling only between 8 a.m. and 9 p.m.
  • Maintaining a “do-not-call” registry for consumers who do not wish to be called
  • Honoring the DNC registry for five years
  • Must provide a name and telephone number where they can be reached
  • Prohibits unsolicited advertising faxes

Though these are some of the most frequently violated rules, the TCPA has dozens of other regulations solicitors must follow when conducting business. A violation of these rules is unlawful, and solicitors can be held accountable in court.

Violations of the Federal Debt Collection Practices Act (FDCPA) and the TCPA take advantage of consumers who don’t know their rights. If you believe you have experienced a violation of either Act, contact a consumer law attorney today. Under the FDCPA you are entitled to up to $1,000 for harassment, and under the TCPA you may receive between $500-$1,500 per call or text.

The Law Offices of Jibrael S. Hindi have litigated hundreds of cases relating to TCPA and FDCPA violations with great success. Our office is eager to help fight on your behalf to hold violators accountable and win you the compensation you are entitled. Call us today at 1-844-JIBRAEL for a free case evaluation.