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Defendant Wins Summary Judgment in TCPA Case

A defendant accused of violating the Telephone Consumer Protection Act has been awarded summary judgment in a case that tackled the definition of an automatic telephone dialing system as well as the revocation of consent.

A copy of the ruling in Thompson-Harbach v. USAA Federal Savings Bank can be accessed by clicking here.

The defendant had been accused of placing at least 71 collection calls to the plaintiff after the plaintiff had revoked consent to be contacted, and that the calls had been placed via an ATDS to the plaintiff’s cell phone.

The case had been stayed for two years while awaiting rulings in other TCPA cases, most notably ACA International v. FCC.

In attempting to collect on an unpaid credit card debt, the defendant, as well as a collection agency to which the account was subsequently placed, made calls to the plaintiff. On a number of occasions, the plaintiff indicated she was working with a debt counselor and asked for the defendant to stop calling her. On at least one of those occasions, the defendant noted the request in its notes.

Thanks to the ruling from the Court of Appeals for the District of Columbia in ACA v. FCC, the judge in this case ruled the technology used by the defendant to contact the plaintiff did not meet the definition of an ATDS. The judge ruled that the ruling in ACA not only invalidated the FCC’s 2015 Declaratory Order, but also parts of earlier orders issued by the FCC in 2003 and 2008.

That decision led the judge to look at the TCPA itself. The issue at hand is the definition of an ATDS: “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 plaintiff argued that the phrase “using a random or sequential number generator” applied only to the “produce” part of the definition and not the “store” part. The judge disagreed.

The Court finds that the adverbial phrase “using a random or sequential number generator” modifies both “produce” and “store.” In other words, the Court finds that a device meets the definition of an ATDS only when it is capable of randomly or sequentially producing, or randomly or sequentially storing telephone numbers.


The judge also disagreed with the Ninth Circuit Court of Appeals in Marks v. Crunch San Diego in how an ATDS is defined.

With respect, this Court finds the Marks court’s decision erroneous as a matter of statutory construction, for the reasons previously stated.

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