11th Circuit Finds TCPA’s ATDS Definition Requires More than Storage of Telephone Numbers
Recently the Eleventh Circuit held that a device is not an Automatic Telephone Dialing System (ATDS) under the TCPA merely because it stores a list of telephone numbers. Thus, under the Eleventh Circuit’s ruling, storage of telephone numbers does not by itself make a device an ATDS. In addition, the court ruled that a device is not an ATDS if “meaningful human intervention is used” to initiate a call, such as pressing a button.
In the underlying cases, the plaintiffs received unsolicited calls and alleged the defendants each used an ATDS to make the calls. Both parties argued over the definition of an ATDS. The plaintiffs argued that the statute makes a device an ATDS if it stores numbers alone. The defendants disagreed, arguing that an ATDS requires a device that either stores numbers using a random or sequential number generator or produces numbers using a random or sequential number generator. Interpreting the statutory language, the court sided with the defendants, finding the devices used did not meet the TCPA’s definition of an ATDS.
In the first case, the Eleventh Circuit observed that because the device used by the defendant merely dialed the numbers of a stored contact list, the device was similar to a smartphone, not an ATDS. Since almost any device that could automatically dial numbers would also have the ability to “store” a number, the Eleventh Circuit rejected the plaintiff’s argument that storing numbers alone would meet the TCPA’s ATDS definition. As a second ground for upholding the lower court’s decision, the court also found the device was not an ATDS because there was sufficient human involvement since “an employee’s choice initiates every call” through the press of a button.
In the second case, the district court found on summary judgment that an ATDS was used because it “did not require human intervention and had the capacity to dial automatically a stored list of telephone numbers,” and therefore the defendant was liable. The Eleventh Circuit disagreed in part, finding the device was not an ATDS merely because it stores a list of numbers. Even assuming this point, the device was not an ATDS because it required human intervention to initiate the calls. However, because some of the unsolicited calls used an artificial or prerecorded voice, the Eleventh Circuit found the lower court correctly decided the defendant violated the TCPA. The court found that the defendant violated the TCPA’s prohibition on the use of artificial or prerecorded voices to unconsenting consumers because the calls were placed after the plaintiff expressly revoked consent.
