A Magistrate judge in Colorado has denied a defendant’s motion to dismiss a class-action after it was sued for violating the Telephone Consumer Protection Act, ruling that an automated telephone dialing system that stores a list of telephone numbers using a random or sequential number generator to determine the dialing order is an ATDS under the TCPA, using a footnote in the Supreme Court’s ruling in Facebook v. Duguid as the basis for his ruling.
A copy of the ruling in the case of Scherrer v. FPT Operating Co. can be accessed by clicking here.
The plaintiff accused the defendant of calling her — and others — on their cell phones without first obtaining consent to do so using an ATDS. The defendant argued it did not use an ATDS as the technology is defined by the TCPA under Facebook. In Facebook, the Supreme Court ruled that for an autodialer to meet the TCPA’s definition of an ATDS it must have “the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” But in its ruling, the Supreme Court included a footnote — Footnote 7 — which said “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.”
Seizing on the footnote, Magistrate Judge S. Kato Crews of the District Court for the District of Colorado ruled that “an autodialer that stores a list of telephone numbers using a random or sequential number generator to determine the dialing order is an ATDS under the TCPA,” and was not persuaded by the defendant’s arguments to the contrary. “… under Defendant’s theory of an ATDS, an opposite outcome could result, whereby someone could curate a list of only emergency services telephone numbers, and then store those telephone numbers, utilizing a random or sequential number generator to determine the calling order,” Judge Crews wrote. “Yet that person would not have utilized an ATDS, according to Defendant’s theory. Such a result, however, would tie up emergency telephone numbers, which is exactly what Congress was trying to combat with the TCPA.”