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North Carolina District Court: Clear Statutory Meaning of ATDS is “Snow” Joke

“Plaintiff’s TCPA claim fails as a matter of law because plaintiff does not allege that the text messages she received were sent using equipment which has the capacity to store or produce numbers to be called using a random or sequential number generator.”  

In a decision issued Friday in the case of Snow v. GE, the Eastern District of North Carolina dismissed a TCPA claim alleging that General Electric and other businesses sent over 2,900 texts to a consumer’s newly-purchased Tracfone that were intended for the phone’s prior owner. The plaintiff alleged that the defendants “utilized one or more of the forms of hardware, software, or equipment that the FCC characterizes as an automatic telephone dialing system” and that defendants communicated to plaintiff “by an automated means that did not require human intervention.”

The court found that the complaint was fatally flawed because it did not allege that the equipment used to call plaintiff could store or produce numbers to be called “using a random or sequential number generator.” The court reasoned that the statutory language of the TCPA unambiguously requires use of a random or sequential number generator. In so doing, the court rejected plaintiff’s reliance on FCC orders and decisions that preceded the ACA Int’l opinion. Instead, the court followed cases like Dominguez v. Yahoo! which held that ACA Int’l “set aside the FCC’s interpretations of the definitions of an ATDS and the court must return to the statutory definition of ATDS without that FCC guidance.” In the process, the court also declined to follow the Ninth Circuit’s expansive interpretation of ATDS in Marks v. Crunch San Diego and found that an ATDS requires random or sequential number generation.

What is perhaps the most interesting – and most noteworthy – development in this decision is how the court applied the random or sequential number generator requirement to the allegations in the complaint. Plaintiff alleged that the text messages she received were intended for the prior owner or user of her reassigned number. The court explained that, because plaintiff was alleging that the messages were intended for a targeted recipient, plaintiff was not alleging that they were sent using a random or sequential number generator. The case was dismissed and cannot be refiled. It is unknown at this time if plaintiff will appeal.

This is the first decision from a court in the Fourth Circuit interpreting the term ATDS after ACA Int’l. Not only does this provide support for a limited construction, grounded in statute, of the term ATDS, but it also serves as an effective guide for attacks on TCPA suits early in litigation.

Michele Shuster headshot

Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.

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