Deepening a circuit split, the Eleventh Circuit has weighed in on the hotly debated issue of what constitutes an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA) and has notably rejected the Ninth Circuit’s Marks v. Crunch San Diego, LLC, decision. In Glasser v. Hilton Grand Vacations Company, LLC (which encompassed another case, Evans v. Pennsylvania Higher Education Assistance Agency), the Eleventh Circuit held that a system requires random or sequential number generation in order to constitute an ATDS.

In Glasser, the plaintiff allegedly received more than a dozen unsolicited calls to her cellphone from a timeshare marketer. While the defendant admitted sending the calls, it argued that it did not use an ATDS. The district court granted summary judgment in favor of the defendant, and the federal appellate panel affirmed, finding that the defendant had not used an ATDS to call the plaintiff.

The court’s analysis of the definition of an ATDS is focused on grammar, criticizing the Marks interpretation of an ATDS (construing § 227 to cover devices with the capacity to automatically dial numbers from a stored list or to dial numbers produced from a random or sequential number generator) as “more like ‘surgery’” than following “conventional rules of grammar and punctuation.” Namely, the court found that the phrase “using a random or sequential number generator” modifies both verbs in the statute (to “store” and to “produce”). Therefore, systems that automatically dial numbers from a stored list fall outside this definition.

The Eleventh Circuit also opined on whether human intervention is a relevant inquiry in the autodialer analysis, concluding that it is and finding the defendant’s system, Intelligent Mobile Connect, not an ATDS because it required human intervention to initiate the call despite the fact that the system “dials the numbers itself.” The court stated, “The technology before us requires meaningful human interaction to dial telephone numbers: An employee’s choice initiates every call. Yes, the system dials the numbers itself. But no one would think that telling a smartphone to dial the phone number of a stored contact (or several contacts) means the smartphone has automatically dialed the number. Human intervention is necessary there, just as it is here, to initiate the call.”

The court also affirmed its ruling on the issue of standing, previously stated in Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1270 (11th Cir. 2019)—that “[t]he receipt of more than one unwanted telemarketing call . . . is a concrete injury that meets the minimum requirements of Article III standing.”

To read the full opinion in Glasser v. Hilton Grand Vacations Company, LLC, click here.

Why it matters: The Eleventh Circuit is now the fourth appellate court to issue an opinion (joining the Second Circuit, Third Circuit and Ninth Circuit) after ACA International v. FCC to define the contours of an ATDS, and it has adopted a significantly narrower definition than the expansive Marks decision from the Ninth Circuit. The ruling is more in line with the Third Circuit’s approach in Dominguez v. Yahoo. The ruling also contrasts with Marks in finding that “meaningful” human intervention can prevent a system from being an ATDS. This ruling will also provide more clarity to cases filed in the Eleventh Circuit, including those in Florida, a hotbed of TCPA litigation.