The meaning of an “automatic telephone dialing system” (“ATDS”) as defined by the Telephone Consumer Protection Act (“TCPA”) has been hotly contested since the D.C. Circuit invalidated the prior Federal Communications Commission (“FCC”) rulings interpreting the TCPA in 2018. The Ninth Circuit has held that merely calling numbers from a stored list is sufficient to meet the definition of an ATDS, while the Third Circuit has at least indicated that the ability to generate numbers randomly or sequentially is the defining characteristic.
On January 27, 2020, the Eleventh Circuit entered the fray and concluded that to qualify as an ATDS a device must be capable of generating numbers randomly or sequentially. The Eleventh Circuit acknowledged that “[c]larity, we lament, does not leap off this page of the U.S. Code.” Nonetheless it concluded that “conventional rules of grammar and punctuation” require that the phrase “using a random and sequential number generator” modifies both the verbs “store” and “produce.” Importantly, the Eleventh Circuit held that “[i]f all you need to show is storing and calling, that would apply to the ‘capacity’ of nearly every piece of equipment, whether designed to produce randomly generated numbers or not.”
Just three weeks later, on February 19, 2020, the Seventh Circuit followed the Eleventh Circuit’s reasoning and held in Gadelhak v. AT&T Services, Inc. that a defendant’s dialing system did not constitute an ATDS under the TCPA where it was not capable of generating random and sequential numbers. The Court analyzed the language of the TCPA and determined that, as written, there were four potential ways to interpret the statutory language. Relying on basic rules of grammar and punctuation, as well as the technology that was available at the time the TCPA was enacted into law in 1991, the Seventh Circuit decided that the Eleventh Circuit’s interpretation in Glasser was the most persuasive. Therefore, the Court concluded that, to be an ATDS, a device must be capable of generating random and sequential numbers. In other words, the Seventh Circuit agrees that a device is not an ATDS merely because it dials from a stored list of numbers.
Thus, under the reasoning of the Third, Seventh and Eleventh Circuits, random and sequential number generation is required for a device to be an ATDS under the TCPA; a device, such as a predictive dialer that can merely dial from a stored list of phone numbers, does not satisfy the definition. The Supreme Court is expected to weigh in on these issues and resolve the developing circuit split between the Third, Seventh, Eleventh Circuits and the Ninth Circuit.