Weiner Brodsky Kider PC

The Sixth Circuit recently issued an opinion holding that a device capable of dialing telephone numbers from a stored list of numbers constitutes an autodialer or automatic telephone dialing system (ATDS) under the TCPA.  The Sixth Circuit agreed with the Second and Ninth Circuits’ broad interpretation of what qualifies as an ATDS, furthering a circuit split.  The Seventh and Eleventh Circuits apply a more narrow interpretation where only a device that is capable of generating random numbers qualifies as an ATDS.

A student loan borrower and her co-signer agreed to receive calls on their cell phones when submitting a formal written request for forbearance on the loan.  The complaint, filed against a student aid organization servicing the loan, alleges that the company relied on a communications platform utilizing number-storing technology to contact borrowers.  The defendant-company failed to stop contacting plaintiffs by phone following their request to no longer receive calls regarding their loan, making a total of 353 calls to plaintiffs.  

Plaintiffs filed suit against the company alleging TCPA violations, and the District Court granted summary judgment for the plaintiffs.  The Sixth Circuit upheld the district court’s ruling because the technology utilized to contact the plaintiffs was a stored-number system, which the Court held was an ATDS and prohibited by the TCPA.  The Court acknowledged the circuit split, but agreed with the interpretation of the TCPA adopted by the Second and Ninth Circuits based on a technical reading of the statute’s definition of an ATDS.

This circuit split developed following a ruling by the D.C. Circuit that set aside interpretative rulings from the July 2015 FCC Declaratory Ruling and Order on what equipment constitutes an ATDS. Additional discussion by WBK regarding that ruling may be found here.