The Sixth Circuit Adopts Expansive Interpretation of ATDS
In Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit weighed in on the definition of an ATDS, joining the Second and Ninth Circuits in reading it expansively. The opinion was issued twenty days after the Supreme Court agreed to review this issue, following a growing split among the circuit courts. (Click these links for our previous blogposts about decisions from the Second, Seventh, Eleventh, Ninth, Third, and D.C. Circuits.)
Allan considered whether a device that dials from a stored list of numbers but cannot randomly or sequentially generate those numbers—like the Avaya system used by the defendant—qualifies as an ATDS. The court concluded that it does, expressly rejecting the “plain text readings” adopted by several other circuits as “too labored and problematic.” The court found that the role of the phrase “to store” in a plain-text reading was either strained, superfluous, or lacking a direct object, making such an interpretation “unworkable.”
The court instead adopted the Second and Ninth Circuits’ approach, finding the text of the statute of ambiguous and then looking to other provisions within the statute to construct the definition. The court concluded that two provisions involving calls made to known recipients provide implicit support for including within the ambit of the TCPA devices that dial from a stored list of numbers. Specifically, the court reasoned that the TCPA’s consent exception for calls made to “known, consenting recipients implies that the autodialer ban applies to stored-number systems.” It further reasoned that the government-debt-collection exception, which was added to the statute in 2015 and was recently invalidated by the Supreme Court in Barr v. AAPC, also “implies that the autodialer ban covers stored-number systems” because such calls are made from a stored list of “known numbers, not random numbers.”
Allan also took issue with the Eleventh Circuit’s interpretation of the legislative and administrative history, concluding that “Congress intended to crack down on automated calls themselves—not just the technology making them possible at the time.” The court dismissed the Seventh and Eleventh Circuits’ concern that the expansive statutory interpretation adopted by the Second and Ninth (and now Sixth) Circuits would render nearly every device, including every smartphone, an ATDS. The court noted that while such a concern may be true today, it was not a concern at the time the TCPA was enacted in 1991. Moreover, Allan characterized such a concern as “unfounded” and a “parade of horribles.” The court posited that the D.C. Circuit had already dispatched with this concern when it set aside the FCC’s unreasonably expansive definition of “capacity.” To the Allan court then, using “smart phone autodialer software to call or message recipients en masse,” would create liability. “But the standard, non-automatic message or call would not[.]”
What may have been monumental just a few months ago is now just further evidence that the Supreme Court was right to agree to review this issue. One thing remains true–that the circuit split continues to be an impediment to a clear and predictable understanding of the TCPA’s autodialer restrictions on a nationwide level.