Gov’t Adopts Narrow ATDS Definition in Supreme Court Brief

As first noted by Eric Troutman at TCPAWorld.com, the federal government, in a brief filed Friday with the Supreme Court, thinks that the definition of an automated telephone dialing system starts and ends with technology that has the capacity to use a random or sequential number generator to store or produce telephone numbers.

The government’s brief was filed as part of the proceedings in Facebook Inc. v Duguid, which the Supreme Court will address during its next session. Both sides had a deadline of Friday to file their briefs in the case, and, as Troutman noted, “The Government has now (finally) spoken authoritatively on the scope of the TCPA’s current ATDS definition.”

The Supreme Court is being asked to determine, once and for all, how an ATDS should be defined under the Telephone Consumer Protection Act. The statutory text reads: 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.” The source of 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.

Appeals Courts have split on the definition, which led the Supreme Court to decide to weigh in. The Second Circuit and Ninth Circuit Courts of Appeals have ruled that an ATDS is defined as technology that has “the “capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator.”

The Seventh and Eleventh Circuit, meanwhile, have determined 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.

In its brief, the federal government says that the Supreme Court need not do anything else other than read the TCPA to reach the same conclusion it did. “As a matter of basic grammar, the phrase ‘using a random or sequential number generator’ in Section 227(a)(1)(A) is best read to modify both ‘store’ and ‘produce,’ ” the government wrote. “No countervailing textual indicator provides a sound reason to depart from that reading.”

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