BREAKING TCPA NEWS: SEVENTH CIRCUIT REJECTS MARKS– HOLDS RANDOM OR SEQUENTIAL NUMBER GENERATION REQUIRED FOR ATDS USAGE

MAJOR STANDING RULING AS WELL.

On issue of ATDS definition court says: “Unfortunately, the awkward statutory wording, combined with changes in technology, makes” definition “a very difficult question.”

As TCPAWorld.com predicted,Seventh Circuit confirms that FCC’s 2003 and 2008 predictive dialer rulings are dead: “And contrary to Gadelhak’s assertion, ACA International did not leave prior FCC Orders intact.”

Court recognizes “at least four ways to read the TCPA’s ATDS definition.” But Court recognizes that requiring “random or sequential number generation” for ATDS usage is “certainly the most natural one based on sentence construction and grammar.”

On standing: Gadelhak’s standing to sue is not settled by the fact that the Telephone Consumer Protection Act authorizes his suit. See 47 U.S.C. § 227(b)(3). It depends on whether the unwanted texts from AT&T caused him concrete harm or were merely a technical violation of the statute. Gadelhak rejects Salcedo and holds that receipt of any unwanted text is sufficient to afford Article III standing–in line with Van Patten.

Court finds that under Marks every iPhone is an ATDS “right out of the box.” Yet “[c]onsidering the statute as a whole, that result makes little sense.”

Court rejects argument that Congress ratified Marks definition  by silence: “Congressional failure to act does not necessarily reflect approval of the status quo.”

Holding:

The district court held that AT&T’s system did not qualify as an “automatic telephone dialing system” because it lacked the capacity to generate random or sequential numbers. Although we adopt a different interpretation of the statute, under our reading, too, the capacity to generate random or sequential numbers is necessary to the statutory definition.

Gadelhak v AT&T Services

Analysis here.

Decision here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D02-19/C:19-1738:J:Barrett:aut:T:fnOp:N:2474843:S:0

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