In contrast to recent decisions on the issue of what qualifies as an automated telephone dialing system (“ATDS”) under the TCPA, a judge in Illinois held that a machine may fit the bill even if it doesn’t have the current capacity to randomly or sequentially generate numbers.

The case involved social networking service Path, Inc. Illinois resident Kevin Sterk sued the company after he allegedly received an unsolicited promotional text message. After limited discovery on the issue of whether the text was transmitted via an ATDS, the parties both moved for partial summary judgment. The central question was one about the capabilities of the calling equipment.

ATDS equipment covered by the TCPA’s prohibitions is defined in the statute as “equipment which has the capacity: (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

Path argued that it did not have equipment with the capacity to generate random or sequential phone numbers. But relying on Federal Communications Commission decisions interpreting the TCPA, the court held the lack of equipment didn’t matter.

“The undisputed facts show that Path acquires a stored list of phone numbers from users,” U.S. District Court Judge Samuel Der-Yeghiayan wrote. “The undisputed facts also show that Path’s agent then uses automated equipment to make calls from that list. The FCC found that a predictive dialer, which makes calls from a database of numbers constitutes an ATDS. The FCC emphasized that the main requirement for an ATDS is not the capacity to generate random or sequential numbers, but rather to be able to ‘dial numbers without human intervention.’”

Path countered that human intervention occurs when a user works his or her way through prompts to upload their contact list, but the court disagreed. “[S]uch conduct by Path users merely relates to the collection of numbers for Path’s database for numbers. The undisputed evidence shows that the equipment used by Path’s agent made calls from the list without human intervention,” the court said. “It is such calling that the section of the TCPA at issue in this case covers, not the collection of numbers for storage.”

Judge Der-Yeghiayan added that even if the FCC rulings were not controlling, he would reach the same conclusion based on Congressional history and “well-founded concerns” as to “the threats posed to the public welfare and safety by certain telemarketing practices.”

In a final attempt to sway the court, Path pointed out that the court’s interpretation could lead to absurd results, but the Court responded, the “TCPA does not bar the ownership of an ATDS. The TCPA bars the improper use of an ATDS to harass unsuspecting consumers and place the public safety at risk. If a person used a cellphone to send countless unsolicited text messages that harmed the public welfare in such a fashion, it would not be an absurd result to find that the cellphone user had violated the TCPA.”

To read the order in Sterk v. Path, click here.

Why it matters: The Path decision adds to the discordant rulings on the issue of what constitutes an ATDS. In April, a federal court judge in Pennsylvania tossed a TCPA suit after finding that the plaintiff failed to present evidence that the existing configuration of Yahoo!’s system rendered it an ATDS while a Washington court reached a similar decision in February. This dichotomy in decisions demonstrates the continuing conflict between federal courts on the issue and the need for companies to be cognizant of the equipment being used to place telephone calls or send text messages, as there is little certainty right now which way a judge may rule.