On February 19, in Gadelhak v. AT&T Services, Inc., the 7thCircuit adopted the reasoning of the 3rd and 11th Circuits holding a dialing system is not an ATDS as defined by the TCPA if it does not store or produce numbers to be called using a random or sequential number generator, and, instead, exclusively dials numbers stored on a customer database.
The court recognized interpreting the definition of an ATDS is "enough to make a grammarian throw down her pen," and there are at least 4 ways to interpret the definition. But, then skipped straight to the "punchline."
We hold that "using a random or sequential number generator" modifies both "store" and "produce." The system used in this case . . . neither stores nor produces numbers using a random or sequential number generator. . . Thus, it is not an "automatic telephone dialing system" as defined by the Act.
So far, the 9th Circuit is the only Circuit Court to disagree. In Marks v. Crunch San Diego, LLC, the 9th Circuit held the definition of ATDS captures not only equipment that produce random or sequential numbers, but also equipment that can store numbers and dial them. That said, many Circuits have yet to weigh in. And, late last week, appellants in the 11th Circuit case, Glasser v. Hilton Grand Vacations Company, LLC, filed a petition for rehearing en banc. Will the 11th Circuit reconsider? Will the Supreme Court eventually do so? Stay tuned.
Note, the court also included a detailed analysis of Article III standing and ultimately held the plaintiff had standing to assert a claim based upon 5 text messages. Questions: We are here to help!
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