Plaintiff Files Petition For En Banc Hearing in TCPA Case

The plaintiff in a Telephone Consumer Protection Act case has filed a petition to have the entire Seventh Circuit Court of Appeals hear arguments in its case, after a panel from the Seventh Circuit last month affirmed a lower court’s ruling that technology that does not have the capacity to generate random or sequential numbers does not meet the definition of an automated telephone dialing system under the TCPA. For the analogies alone, the petition from the plaintiff is worth the read.

A copy of the petition in the case of Gadelhak v. AT&T Services can be accessed by clicking here.

The issue at hand is how to parse a sentence in the TCPA that defines an automated telephone dialing system. In the TCPA, an ATDS is defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” What is causing the conflict 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.

One appeals court – the Ninth Circuit – has ruled that an ATDS is equipment that either stores or produces numbers to be called. Other appeals courts – the Seventh Circuit in this case and the Eleventh Circuit in Glasser v. Hilton Grand Vacations – have rule that an ATDS is equipment that stores and produces numbers to be called. The plaintiff is attempting to convince the Seventh Circuit that it’s initial interpretation of the TCPA was incorrect.

In making its argument, the plaintiff uses a number of analogies to make his case.

“The surgeon sterilized and incised my elbow, using a scalpel.”

“Baseball is a sport in which players throw or hit a ball, using a bat.”

“This company manufactures and ships widgets, using the U.S. postal service.”

“I have deduced that Mrs. Peacock either shot or bludgeoned Colonel Mustard in the Billiard Room, using the Candlestick.”

“In each of these examples two verbs share a direct object, which is followed by a modifying phrase that is most naturally read to modify only the last verb in the series,” the plaintiff writes in his petition. “One need not ‘contort the text almost beyond recognition’ to conclude that the surgeon used the scalpel to incise my elbow, not to sterilize it. Likewise, no rule of grammar requires the reader to conclude that baseball players use a bat to throw a baseball.”

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