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Well here’s a huge ruling to start your week. A district court in Kansas issued a ruling yesterday reviewing the TCPA’s enigmatic ATDS definition and concluding that the statute only applies to equipment that calls randomly or sequentially and does not apply to dialers that call from a list of numbers.
If you have been living under a TCPA rock for a year, the Circuit Courts of Appeal are badly split on the functionalities required of a dialer to qualify as an ATDS. And while most Circuits now either have binding appellate court rulings or a clear lean at the district court level, the Tenth Circuit Court of Appeals footprint has been a real ATDS mystery.
In Hampton v. Barclays Bank Del., Case No. 18-4071-DDC-ADM, 2020 U.S. Dist. LEXIS 14529 (D. Ks. Aug. 13, 2020), the Court issued a tightly-written 29-page opinion fully analyzing the backdrop of the TCPA ATDS interpretation crisis and expressly “predicting” the course the Tenth Circuit Court of Appeals would adopt if/when it addresses the question. Its verdict? Random and sequential number generation is required.
Here is the critical language:
After considering the approaches other Circuits have taken, the court predicts our Circuit would take the same approach as the Seventh and Eleventh Circuits in Gadelhak and Glasser. These cases held that devices that exclusively dial numbers stored in a customer database do not qualify as autodialers for purposes of the TCPA.
The Hampton court gives several reasons for its conclusion:
- Glasser and Gadelhak “exhaustively analyze the statute’s text…[a]nd both reached the same conclusion: the phrase “using a random or sequential number generator” modifies both “store” and “produce.”
- Glasser and Gadelhak persuasively explain why Marks’s discussion about the TCPA exemptions doesn’t carry the day.
- The legislative history supports the Glasser reasoning
- Congressional failure to amend the statute in 2015—after the FCC’s 2015 Order—is not tacit approval of the FCC’s Order because “[c]ongressional failure to act does not necessarily reflect approval of the status quo."
The Court also distinguished Morgan v. OnDeck—that horrifying case holding that even manual calls can be subject to the TCPA if a Defendant uses a dialer solution of the same brand name—as inapplicable since Plaintiff has not shown the system as a whole has the capacity to operate using the required ATDS functionalities. That’s always good to see.
In the end, the Court granted judgment to the defendant on the ATDS case. And while that’s a great result, one wonders whether it will end up being somewhat academic. Plaintiff will surely appeal and the Defendant’s prospects will ultimately turn on the outcome of Facebook—just like everyone else’s. One wonders whether it would have been more cost-effective to simply seek a stay, rather than battle on in the inevitable appeal. Nonetheless, this is a great and important win that will likely push the Tenth Circuit into the “light green” column on TCPAWorld.com’s ATDS heatmap. More to come.
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