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Eleventh Circuit Narrows ATDS Definition

One area of continued confusion and conflict among courts reviewing TCPA cases has been how each approaches the scope of the statutory definition of an autodialer, as this critical matter can spell the difference between calls being deemed violative of the statute or acceptable. Last week, the Eleventh Circuit addressed a pair of appeals disputing the scope of the definition of “automatic telephone dialing system” (“ATDS”) under the TCPA. In Glasser v. Hilton Grand Vacations Co., the Eleventh Circuit determined that ATDS should include only equipment that generates numbers randomly or sequentially and then dials them automatically—effectively excluding equipment that dials numbers from preexisting lists. 2020 WL 415811, at *2 (11th Cir. Jan. 27, 2020). This places the Eleventh Circuit squarely at odds with the Ninth Circuit’s expansive definition of ATDS in Marks v. Crunch San Diego.

The ruling hinged on the interpretation of § 227, which defines ATDS 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.” 47 U.S.C. § 227(a)(1). The parties disagreed whether the clause “using a random or sequential generator” modifies both “to store” and “[to] produce.” Glasser, 2020 WL 415811, at *2. Plaintiffs argued the clause modifies only “[to] produce,” meaning that calls to targeted lists are subject to the restrictive treatment of autodialer use, even though they are not randomly or sequentially identified. Id.

Acknowledging that clarity “does not leap off this page of the U.S. Code,” the Eleventh Circuit agreed with Defendants and held that this critical clause modifies both verbs. Id. Thus, because Defendants’ equipment called targeted individuals, the calls were not appropriately considered to be placed via ATDS. Id. In reaching its conclusion, the Eleventh Circuit relied on conventional rules of grammar and legislative history—providing detailed analyses of both. Id. at *2-7.

The Eleventh Circuit joined the Third Circuit in narrowly defining ATDS. Id. at *6. Notably, however, the Glasser ruling is inconsistent with the Ninth’s Circuit 2018 Marks v. Crunch San Diego decision, which broadly construed ATDS to include devices with the capacity to automatically dial numbers from stored lists. Id. at *6-7. So while Glasser represents a reduction in the scope of liability in the Eleventh Circuit, consistency and clarity as to what qualifies as an ATDS across jurisdictions remains elusive.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 37

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About this Author

Laura Phillips, Drinker Biddle Law Firm, Washington DC, Communications Law Attorney
Partner

Laura H. Phillips is a partner in and chair of the firm's Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team.  She has over 25 years of experience working in nearly every aspect of the telecommunications market.

Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including devoting substantive attention to the development of spectrum auctions, network...

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Natalie DeLave Litigation Attorney
Associate

Natalie K. DeLave assists clients with various aspects of litigation, including legal research and the drafting of motions and other memoranda.

While in law school, Natalie interned for the Honorable Manish S. Shah of the U.S. District Court for the Northern District of Illinois and for the Honorable Robert L. Miller, Jr. of the U.S. District Court for the Northern District of Indiana. She was a summer associate at Drinker Biddle in 2017.

Bar Admissions

  • Illinois

Education

  • University of Notre Dame Law School, J.D., 2018, magna cum laudeNotre Dame Journal of Legislation - Managing Editor

  • University of Michigan, B.A., 2015, high distinction

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