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Western District of Michigan Finds that the Avaya System is an ATDS Resulting in a Split in Michigan on What Constitutes an ATDS

The United States District Court for the Eastern District of Michigan gave us notable cases like Gary v. TrueBlue, Inc., Case No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018), where the court held that  random or sequential number generation is necessary to qualify as an ATDS,  and Keyes v. Ocwen Loan Servicing, No. 17-cv-11492, 2018 U.S. Dist. LEXIS 138445 (E.D. Mich. Aug. 16, 2018), where the court held that an Aspect predictive dialer was not an ATDS because it did not dial using random or sequential number generator.

But just recently, the Western District of Michigan weighed in on the ATDS issue and went in the opposite direction.  In Allan v. Pennsylvania Higher Education Assistance Agency, No. 2:14-CV-54, 2019 WL 3890214 (W.D. Mich. Aug. 19, 2019), the Court found that the Avaya system used by Defendant qualifies as an ATDS

The Allan court adopted the Marks decision out of the Ninth Circuit finding that certain provisions of the Telephone Consumer Protection Act (TCPA) allow an ATDS to call select numbers – for example, 47 USC §227 (b)(1)(A) permits calls made with prior express consent of the called party.  But, as the Ninth Circuit explained, to take advantage of this provision, an ATDS would have to dial from a list of phone numbers of persons who had consented to the call.   Moreover, the Allan court cited to Marks noting that in 2015, Congress amended the TCPA to exempt use of an ATDS to make calls “solely to collect a debt owed to or guaranteed by the United States.”  As such, the statutory definition of an ATDS must include a device that stores telephone numbers to be called from a list. 

Based on these points, the Allan court agrees with the Ninth Circuit and finds that “the statutory definition of an ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.”  Id. at *3.   Thus, the Allan court held that “the Avaya system that [Defendant] uses stores telephone numbers to be called and automatically dials those numbers” and therefore qualifies as an ATDS under the TCPA. Id.  

But a particularly interesting aspect of this opinion was that the Allan court declined to award treble damages finding that “at the time that [Defendant] acted in violation of the statute, the Federal Communications Commission (FCC) had equivocated on whether the type of system [Defendant] used qualified as an ATDS.” As such, the Court held that Defendant did not willfully or knowingly violate the TCPA. 

It remains to be seen if the Seventh Circuit will take up the issue of what systems constitute an ATDS.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume IX, Number 233


About this Author

Nicole Su, Womble Dickinson, Business litigation lawyer

Nicole focuses her business litigation practice on commercial and financial services cases, with a particular emphasis on Telephone Consumer Protection Act (TCPA). She is part of a nationally-recognized team that is at the forefront of the TCPA space.  Along with the team, Nicole brings the experience and capability to vigorously defend financial institutions in TCPA actions nationwide. 

Nicole is dedicated to achieving cutting-edge results for her clients.  She uses her in-depth knowledge of the TCPA to come up with creative solutions for difficult problems.