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Cases in Point: Shupe v. Capital One Bank

First TCPA Case Referencing Marks’ ATDS Definition

In the District Court of Arizona, the TCPA was called upon to condemn Capital One.The issue at hand? Consent, the DNC registry, and proof of an ATDS.

The Background
  • Plaintiff Shupe claimed Capital One violated the TCPA by calling after a DNC order was in place
  • Plaintiff also claimed that Capital One used an ATDS to call the cellphone in the first place
  • In response, Capital One provided their customer agreement on which cardholders acknowledge that Capital One can contact them “using an automated dialing or similar device.”
  • The customer agreement also states that if customers provide Capital One their “mobile telephone number, we may contact you at this number using an Autodialer.”
  • Plaintiff denied ever receiving or consenting to this agreement. Furthermore, they claimed they revoked consent to receive calls from Capital One.
The Decision
  • Referencing the controversial Marks decision, the court reinforced the definition of an ATDS as equipment that could engage in automatic dialing, regardless of whether human intervention is involved.
  • Because the plaintiff was unable to supply evidence of defendant’s ATDS software, the court granted summary judgment and ruled in favor of the creditor, Capital One.
  • Important to note is that were it not for the plaintiff’s inability to produce evidence of the use of an ATDS, this case could have gone a lot differently.
  • “Plaintiffs bear the burden of providing the elements of their Do-Not-Call claim, including that the calls were solicitations,” according to the court.

Emily Faracca

Emily is the content creator at Arbeit. She is an aspiring gardener, enjoys bike rides through her neighborhood, and is a big fan of a good cocktail. As much as she loves her hometown of Buffalo, N.Y., she absolutely loves to travel, and at the top of her bucket list is a trip to Sicily, where she still has living relatives.

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