The Court of Appeals for the Eleventh Circuit has offered a lesson in grammar and statutory construction to set the record straight — at least within the boundaries of its judicial realm — on what defines an automated telephone dialing system within the context of the Telephone Consumer Protection Act. In doing so, the Court affirmed a lower court’s ruling in one case and partially affirmed and partially reversed a lower court’s ruling in a second case involving collection calls.
A copy of the ruling in the case of Glasser v. Hilton Grand Vacations and Evans v. Pennsylvania Higher Education Assistance Agency can be accessed by clicking here.
Glasser received a dozen telemarketing calls promoting timeshares. Evans received 35 calls about unpaid student loans. Both plaintiffs received the calls on their cell phones and neither had given the defendants permission to contact them. Both sued the defendants for violating the TCPA.
A District Court judge ruled that the defendant in Glasser‘s case did not use an ATDS because the technology required human intervention in order to make calls. A District Court judge ruled the defendant in Evans‘s case did use an ATDS and that 13 of the 35 calls were willful violations of the TCPA. Glasser and PHEAA appealed the rulings.
The Eleventh Circuit decided that the case hinged on whether the clause “using a random or sequential number generator” in the TCPA modifies both “store” and “produce,” as in “equipment which has the capacity — (A) to store or produce telephone numbers to be called” or whether the clause modified just one of those verbs.
Admitting that there is no “ideal option,” the Eleventh Circuit decided to pick what it called the “better option” and determined that the clause modified both verbs.
“Consider these examples to see the point. In the sentence, ‘Appellate courts reverse or affirm district court decisions using the precedents at hand,’ no one would think that the appellate judges rely on precedents only when affirming trial judges. Or if a law gives tax preferences for ‘[a] corporation or partnership registered in Delaware,’ then ‘a corporation as well as a partnership must be registered in Delaware’ in order to be eligible for the preference. The same principle applies here.”
The placement of the comma in the TCPA — “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” — in between “called” and the clause indicates that the clause modifies both verbs, the appeals court ruled.
“The key reality is that it is difficult to think of dialing equipment that can ‘produce’ telephone numbers and ‘dial’ them but lacks the ‘capacity’ to ‘store’ them,” the court wrote. “Somewhere between identification and production, storage occurs.”