11th Circuit Decision Deepens Split on ATDS Definition

11th Circuit Decision Deepens Split on ATDS Definition

This week, the Eleventh Circuit weighed in with a limited definition of an Automatic Telephone Dialing System (“ATDS”), further creating a circuit split on the issue following the D.C. Circuit’s ACA International ruling.  The three judge panel ruled that a system must have the capacity to dial numbers randomly or sequentially to qualify as an ATDS, diverging from the Ninth Circuit’s prior ruling in Marks v. Crunch San Diego, which held that a system capable of automatically dialing numbers from a preexisting call list could qualify as an ATDS.

The ruling centers around the statutory meaning of an ATDS, which the Telephone Consumer Protection Act (“TCPA”) defines 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.”  While the Court recognized that the statutory definition lacks clarity, it concluded that the better option is to adopt an interpretation that “a random or sequential number generator” applies to a dialer’s ability to both store and produce telephone numbers.  As such, the Court reasoned, equipment that only dials numbers from a stored list (and not numbers generated randomly or sequentially) does not qualify as an ATDS under the TCPA.

The Eleventh Circuit decision creates a further divide on what equipment qualifies as an ATDS following the March 2018 ACA International rejection of more than a decade of FCC guidance on the topic.  At the other end of the spectrum, a number of district courts and the Ninth Circuit have adopted an exceedingly broad post-ACA definition of an ATDS,  which includes equipment that dials numbers from a preset list.

While this outcome is unquestionably a positive development for organizations that use predictive dialers or calling lists, until the U.S. Supreme Court or FCC definitively weighs in on the issue, the scope of the TCPA’s ATDS definition remains an open issue.  Therefore, the prudent course of action at this time remains to follow the expansive view of an ATDS, as exemplified in the Ninth Circuit’s Marks decision.

A Partner at M&S, Chris advises clients on telemarketing and privacy matters, helping them develop proactive compliance programs and successfully defending them in government enforcement actions, litigation, and class action lawsuits.

1200 798 Chris Wager
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