For those of you keeping track at home—that’s all of you—here’s a current rundown of TCPA ATDS decisions at the Circuit Court level for you. (As always, the trusted TCPAWorld ATDS review tracks decisions at the district court level for your convenience.)
The Seventh and Eleventh Circuit Courts of Appeal have held that the TCPA’s ATDS definition is limited to devices that can dial randomly or sequentially. The Ninth and Second Circuit Courts of Appeal have held that the TCPA’s ATDS definition applies to any device with the ability to dial from a list without human intervention. The Third Circuit Court of Appeals has sort of agreed with the Seventh and Eleventh circuits– although courts disagree on this one. The First and Fifth Circuits have not yet weighed in (although we know which way those will go–see here and here if you need a hint.) The Eighth Circuit Court of Appeals has not yet reviewed the issue, but after the Trump Campaign’s recent debacle in Minnesota you can include that Circuit in the Ninth and Second Circuit camp, at least for the time being.
That just leaves the Fourth, Sixth and Tenth Circuits as ATDS wild cards. While there is no pending action on the issue in the Fourth or the Tenth (to my knowledge at least) the Sixth Circuit is getting quite near a ruling in Susan Allen et al. v. PA Higher Educ. Assistance Agency, 6th Cir. Case No. 19-02043. That appeal will be the first to decide directly whether or not the Avaya predictive dialer system and appears to be a perfect vehicle for the Sixth Circuit to answer the ultimate ATDS question—must a device randomly or sequentially generate numbers to trigger the TCPA.
Despite the size and importance of the appeal, neither Avaya nor any user of the Avaya system elected to intervene or submit amici briefs in the case. That’s just weird to me. On the other hand, the never-miss-an-opportunity-to-argue-for-an-expansive-TCPA National Consumer Law Center teamed up with a few other “pro-consumer” (read “pro lawsuit”) organizations to submit amici briefs urging the Court of Appeal to adopt a broader reading of the TCPA.
Notably, the Sixth Circuit Court of Appeals has already had a brush with the ATDS issue back in Gary v. Trublue where it probably punted on the issue—but maybe not. And while Quicken recently suffered a big loss in a robotext case in the E.D. Mich (within the Sixth Circuit footprint) another Defendant just earned a stay of proceeding from that same court pending the outcome of Allen. See Ollie v. American Education Services, Inc, Case No. 19-cv-12716, Doc. 19. (E.D. Mich. June 24, 2020).
And now you’re up to date.
BTW– tomorrow is another big SCOTUS opinion day. Will June 25, 2020 be the day the TCPA is set aside? Tune in to TCPAWorld.com to be the first to find out.
You mention that “[t]he Seventh and Eleventh Circuit Courts of Appeal have held that the TCPA’s ATDS definition is limited to devices that can dial randomly or sequentially.”
In Gadelhak, the court delineated four interpretations of the definition of an ATDS. Regarding the fourth definition, the court said: “There is one final possibility: that ‘using a random or sequential number generator’ modifies how the telephone numbers are ‘to be called.'” The court did not adopt this definition.
Rather, in Gadelhak the court adopted the interpretation that “the phrase ‘using a random or sequential number generator’ modifies both ‘store’ and ‘produce,’ defining the means by which either task must be completed for equipment to qualify as an ‘automatic telephone dialing system.'”
My understanding is that in the Seventh Circuit an ATDS is not determined by whether the device can dial randomly or sequentially. Rather, it is determined by whether the numbers are stored or produced using a random or sequential number generator.