In Gary v. Trueblue, Inc., 346 F.Supp.3d 1040 (E.D. Mich. Oct. 11, 2018), the court granted the Defendant’s motion for summary judgment on the basis that Plaintiff failed to establish the Defendant’s dialing system had the capacity to randomly or sequentially generate telephone numbers.

Today, the Sixth Circuit affirmed the District Court’s order granting summary judgment.  Gary v. Trueblue, Inc., No. 18-2281, 2019 U.S. App. LEXIS 26959 (6th Cir. Sep. 5, 2019).  In a very brief opinion, the court found that the Appellant had failed to demonstrate that “the FCC’s orders from before 2015 [were] binding,” and had not proffered evidence in the lower court creating a triable issue over whether the system used to send the text messages at issue had the capacity to randomly or sequentially generate telephone numbers. 

The Sixth Circuit’s opinion does not dive into the issue of the validity of the Federal Communications Commission (FCC)’s rulings, or the interpretation of the statutory definition of ATDS.  However, its affirmance of the lower court’s well-reasoned order granting summary judgment is still another positive development that helps foster what is appearing more and more to be a majority viewpoint on these issues.