United States: Commas And Human Conduct - Eleventh Circuit Severely Restricts TCPAS Application

On January 27, 2020, the US Court of Appeals for the Eleventh Circuit severely limited the application of the Telephone Consumer Protection Act (TCPA) ¹. This creates a circuit split with the Ninth Circuit, and will likely result in fewer TCPA cases filed in the Eleventh Circuit jurisdiction of Georgia, Alabama and Florida.

The TCPA prohibits the use of an automatic telephone dialing system (ATDS) to call a party without prior express written consent. Section 227(a)(1) of 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." The central question is: Does the clause "using a random or sequential number generator" modify both "to store" and "[to] produce," or only one? In plain English, is a calling platform required to have the capacity to randomly and sequentially generate numbers in order to qualify as an ATDS? The answer, at least in the Eleventh Circuit, is yes.

To resolve this question, the court analyzed principles of grammar and punctuation. The two verbs "store" and "produce" shared one direct object, telephone numbers, followed by the modifier "using a random or sequential number generator," indicating that using a random generator modified both "store" and "produce." The comma separating the phrase "to store or produce telephone numbers to be called" from "using a random or sequential number generator" triggered the same outcome. Thus, to fall under the TCPA, the phone system must randomly or sequentially store or produce telephone numbers.

The TCPA's history supported the court's holding. When the law was enacted, existing devices could randomly or sequentially generate numbers and either make them available for immediate dialing or store them for later. The law was thus intended to cover both immediate and subsequent prohibited calls. This made practical sense, because the TCPA was enacted to stop telemarketers from accidentally calling emergency lines such as 911. This understanding prevailed until 2003, when the Federal Communications Commission issued an order that extended the TCPA to cover equipment that merely dialed numbers from a stored database. The Eleventh Circuit did not believe that Congress intended for this outcome, which would presumably mean that any phone could be an ATDS.

Significantly, this decision directly conflicts with the Ninth Circuit's decision in Marks v. Crunch San Diego. There the court held that the TCPA covered devices with the capacity to automatically dial telephone numbers from a stored bank, or to dial telephone numbers produced from a random or sequential number generator ². The Ninth Circuit's broad opinion caused a dramatic increase of TCPA cases filed in that circuit.

The final question: What amount of human interaction was sufficient to overcome the "automatic" nature of the dialer such that the TCPA did not apply? Simple, the court held: Where an employee's choice initiates each call, the dialing technology is not automatic. Thus, in the Eleventh Circuit, the TCPA encompasses systems that use random or sequential number generators to store or produce telephone numbers, but does not encompass calls dialed upon human choice.

However, those who engage in marketing calls must still be careful. There are separate TCPA provisions that require prior express written consent for prerecorded telephone calls. Further, marketers must be careful to comply with the federal Do Not Call Registry, regardless of whether an ATDS is used.

We anticipate the filing of a Petition for Certiorari to the Supreme Court, given the circuit split on the definition of an ATDS. For now, we anticipate a decrease in the amount of TCPA cases filed in the Eleventh Circuit.

Footnotes

1. Glasser v. Hilton Grand Vacations Co., LLC, No. 18-14499 (11th Cir. 2020); Evans v. Penn. Higher Educ. Assistance Agency, No. 18-14586 (11th Cir. 2020). ↩

2. Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018).↩

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