Eleventh Circuit Narrows TCPA’s Autodialer Definition


GoodwinThe Eleventh Circuit joined the growing majority of courts in issuing an opinion that significantly narrows the scope of the Telephone Consumer Protection Act (TCPA) and delivers a blow to the plaintiffs’ bar and proponents for an expansive reading of the statue.  In addressing a pair of consolidated appeals, Glasser v. Hilton Grand Vacations Co., LLC and Evans v. Pennsylvania Higher Educ. Assistance Agency, the three-judge panel’s ruling tackled the meaning of an automatic telephone dialing system (ATDS), which is often referred to as an autodialer under the TCPA.  The panel held that, because neither phone system in either case used randomly or sequentially generated numbers (and in Glasser’s appeal, the system required human intervention), neither constituted an auto-dialer.  Therefore, both claims fell outside the TCPA’s scope and were not viable.

Utilizing a grammar-focused and common sense approach in its reading of the TCPA’s statutory language, the panel concluded that the clause “using a random or sequential number generator” modifies both subsequent verbs–“to store” and “[to] produce.”  The panel reasoned that, in the age of smartphones, nearly all phones have the capacity to automatically dial telephone numbers in a stored list.  Given this, the practical result of reading the statute to create liability when calling from a list would be that any unsolicited call using activated software (e.g., Siri or Alexa) or an automatic text message (e.g., “I’m driving”) could impose a TCPA violation of $500.  Echoing similar concerns expressed by the D.C. Circuit, the Eleventh Circuit rejected the idea that such an outcome was the Congressional intent behind the statute.  The decision also expressly rejected the Ninth Circuit’s analysis in Marks v. Crunch San Diego, LLC,  No. 14-56834 (9th Cir.)–which held that an ATDS includes any device capable of dialing numbers from a stored list–explaining that the Ninth Circuit’s reading of the statutory text “looks more like surgery” than interpretation.

The panel acknowledged, yet dismissed, the plaintiffs’ concerns that its interpretation of the TCPA will mean that “nothing will stand in the way of telemarketers who wish to inundate citizens with solicitations and scams.”  Instead, the panel reasoned that potential plaintiffs may still bring claims for violations of the TCPA’s prohibition on calls placed with artificial or prerecorded voices.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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