For several years, courts across the country have struggled to define the term "Automatic Telephone Dialing System" ("ATDS") within the context of the Telephone Consumer Protection Act of 1991 ("TCPA"). The TCPA prohibits making calls or sending text messages "(other than a call made for emergency purposes or made with the prior express consent of the called party) using an [ATDS] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service." In the spring of 2020, the Seventh Circuit Court of Appeals, in Gadelhak v. AT&T Services, Inc., held that a device must either store or produce numbers using a random or sequential number generator to constitute an ATDS for TCPA liability purposes. In doing so, the Seventh Circuit contributed to the growing circuit split regarding the ATDS definition. Gadelhak has since appealed the decision to the United States Supreme Court. Now, AT&T has asked the Supreme Court to stay Gadelhak's appeal pending its anticipated decision on the same issue in Duguid v. Facebook.
What is the substance of the appeal?
The ATDA Definition
With its decision in Gadelhak, the Seventh Circuit joined in the view of the Third and Eleventh Circuits in holding that because AT&T's system "neither store[ed] nor produce[d] numbers using a random or sequential number generator," it did not constitute an ATDS for TCPA purposes. By contrast, the Ninth, Second, and Sixth Circuits have held that to constitute an ATDS, a device need only be able to store a list of numbers to be dialed. In Duguid, the Supreme Court has been asked to determine "[w]hether the definition of an ATDS in the TCPA encompasses any device that can 'store' and 'automatically dial' telephone numbers, even if the device does not 'us[e] a random or sequential number generator.'" AT&T, like many observers in this space, clearly hopes that the Supreme Court's decision in Duguid will finally resolve the ATDS definition split that presently exists among the circuits.
TCPA Law Litigation Strategy
As AT&T argued in its motion, most smart phones would meet the ATDS definition espoused by the Second, Sixth, and Ninth Circuits. This is the case because any iPhone can store telephone numbers and send text messages automatically. Undoubtedly, this very expansive ATDS definition would have wide-ranging effects on TCPA litigation if the Supreme Court were to adopt this interpretation.
As we have blogged, many aspects of TCPA law are in a constant state of flux. With the Supreme Court's pending decision in Duguid, many TCPA defendants are using the same strategy as AT&T and asking lower courts to stay TCPA actions until the Supreme Court provides a workable ATDS definition. No matter how the Supreme Court resolves the current circuit split, Duguid will mark a sea change for TCPA litigation.
In this regulatory climate, businesses should work with experienced counsel to ensure compliance with an ever-changing TCPA law.
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