Add the Court of Appeals for the Sixth Circuit to the list of Circuits in which the definition of an automatic telephone dialing system is not ARM-industry friendly, putting that team ahead 3-2 heading into the final rounds of a fight which will ultimately be decided by the Supreme Court.
The Sixth Circuit yesterday affirmed a lower court’s summary judgment ruling in favor of the plaintiffs in a Telephone Consumer Protection Act case accusing a student loan collector of making 353 calls to two plaintiffs after they had revoked consent to be contacted, leaving more than 30 automated messages on one of the plaintiff’s cell phones asking for the call to be returned. A copy of the ruling in the case of Allan v. Pennsylvania Higher Education Assistance Agency can be accessed by clicking here.
The Court ruled that the technology used to make the calls to the plaintiff qualified as an ATDS because it was “a stored-number device” and joined the Ninth and Second Circuits in adopting an expansive definition of autodialer. The Seventh and Eleventh Circuits have adopted a more narrow definition of an ATDS which is viewed as more industry friendly.
The TCPA defines an ATDS as “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 Ninth and Second Circuits have ruled that technology meets the definition of an ATDS if it stores telephone numbers and calls them, even if they were not generated by a random or sequential number generator. The Seventh and Eleventh Circuits have ruled that an ATDS is one that stores telephone numbers using a random or sequential number generator or produces telephone numbers using a random or sequential number generator. The Supreme Court has agreed to hear arguments in a case during its next term that will hopefully settle the ATDS definition once and for all.
In its ruling, the Sixth Circuit provided how it reads Section 227(a)(1) of the TCPA, which sets forth the definition of an ATDS. That definition is:
An ATDS is “equipment which has the capacity—
(A) to store [telephone numbers to be called];
or produce telephone numbers to be called, using a random or sequential
number generator; and
(B) to dial such numbers.”