Collector Asks Ninth Circuit to Revisit How it Defines ATDS Under TCPA

Portfolio Recovery Associates has asked the Ninth Circuit Court of Appeals to re-consider its stance on how an automated telephone dialing system is defined under the Telephone Consumer Protection Act in the wake of rulings from a growing number of other Appeals Courts that conflict with the Ninth Circuit’s definition.

The company submitted a letter to the Ninth Circuit yesterday as part of the proceedings in its own case, Lamkin v. Portfolio Recovery Associates, LLC. A copy of the letter can be accessed by clicking here. In that case, a judge awarded the plaintiff $300,000 in damages over 199 calls that were allegedly made by the collector to the plaintiff’s cell phone.

Specifically referencing a ruling earlier this week from the Seventh Circuit Court of Appeals in Gadelhak v. AT&T Services, Inc., while also mentioning other rulings from the Eleventh and Third Circuits that take different stances than the Ninth Circuit on what defines and ATDS under the TCPA, the defendant asked the court to change its definition because the Ninth Circuit is “an increasingly isolated outlier,” which will make it “a magnet” for TCPA plaintiffs.

The issue before the courts is largely one of grammar. The TCPA defines an ATDS as equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. What is causing the conflict in the courts is whether “using a random or sequential number generator” applies to equipment that “stores” or “produces” telephone numbers or applies to equipment that does both.

The Ninth Circuit in Marks v. Crunch San Diego ruled that the phrase applies to one or the other. But the Eleventh and now the Seventh Circuits have ruled that the phrase has to apply to both, and if the equipment does not store or produce numbers using a random or sequential number generator then it is not an ATDS.

The defendant also had another argument for why the Ninth Circuit should change its position on how an ATDS is defined. Doing so would eliminate the need for the Supreme Court to weigh in on the issue.

“PRA respectfully submits that this Court should resolve this one-sided circuit split by adopting the Third, Seventh and Eleventh Circuit’s interpretation, as well as the reasoning of the D.C. Circuit,” it wrote in its letter. “That would bring nationwide uniformity to this heavily litigated area of law, rendering unnecessary Supreme Court review to resolve this one-sided split.”

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