On January 27, 2020, the Eleventh Circuit affirmed the Middle District of Florida’s order granting summary judgment in favor of defendant Hilton Grand Vacations Company, LLC (“Hilton”), and reversed the Northern District of Georgia’s order granting summary judgment against defendant Pennsylvania Higher Education Assistance Agency (“PHEAA”), holding that neither defendant had utilized “auto-dialers” in violation of the Telephone Consumer Protection Act (“TCPA”).

• The TCPA prohibits making a call to a cell phone with an “automatic telephone dialing system” (“ATDS”) absent the express consent of the cell phone user. The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
• Plaintiffs Melanie Glasser and Tabitha Evans sued Hilton and PHEAA after receiving dozens of unsolicited phone calls, alleging that the companies placed their respective calls through auto-dialers.
• On appeal, both defendants claimed that their systems were not auto-dialers because they did not “store” or “produce” telephone numbers “using a random or sequential number generator” before dialing. In response, the plaintiffs argued that the TCPA prohibits “stor[ing]” telephone numbers or “produc[ing]” telephone numbers “using a random or sequential number generator”—in other words, that storing the numbers before dialing (even if not using a random or sequential number generator) violates the statute.
• The Eleventh Circuit agreed with the defendants, holding that the provision prohibited storing telephone numbers using a random or sequential number generator or producing numbers using a random or sequential number generator. The court emphasized the use of the comma before the clause “using a random or sequential number generator,” indicating that the clause was intended to modify both verbs.
• Because Hilton and PHEAA used targeted lists of potential consumers and debtors, respectively, and not lists of phone numbers stored or produced “using a random or sequential number generator,” the court held that their systems were not auto-dialers.
• On February 19, 2020, the Seventh Circuit adopted the Eleventh Circuit’s interpretation of auto-dialers in Gadelhak v. AT&T Servs., Inc., likewise holding that “‘using a random or sequential number generator’ modifies both ‘store’ and ‘produce.’”
• The Eleventh Circuit and Seventh Circuit decisions split from the Ninth Circuit’s decision in Marks v. Crunch San Diego LLC, 904 F.3d 1041 (9th Cir. 2018), which held that the TCPA’s prohibition extends to systems that automatically dial phone numbers stored in a list.
• Read the Eleventh Circuit’s decision in Glasser v. Hilton Grand Vacations Company, LLC here.