At least once a day, I answer my phone only to be greeted by “Heather from account services” or someone alerting me that the “warranty on your vehicle is about to expire.” (The warranty on my car expired 4 years ago.) But who is actually on the other end of those calls, and how did they actually dial my number? I have never put in the effort to learn, but if I ever wanted to launch a class action as a named plaintiff under the Telephone Consumer Protection Act (I don’t), I would need to figure that out. Here’s why.
The TCPA makes it illegal to make any call “using an automatic telephone dialing system or an artificial or prerecorded voice” to “emergency telephone lines,” to “guest rooms or patient rooms of a hospital,” or “to any telephone number assigned to a cellular telephone service” without the “prior express consent of the called party.” The TCPA defines an “automatic telephone dialing system” as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator” and “to dial such numbers.” A question thus has arisen in recent years: Does an “automatic telephone dialing device” include only devices that can either automatically store and call numbers or automatically produce and call numbers? Or is it enough if the device can automatically dial numbers from a pre-existing list? And if a company has a pre-existing list, can it automatically dial at will without incurring liability under the TCPA?
This has been, literally, a billion-dollar question: Billions of dollars have been and are at stake in TCPA class actions, where plaintiffs seek statutory penalties of $1,500 per call.
Based on the text and history behind the TCPA, the Eleventh Circuit held last year in Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301 (11th Cir. 2020), that the TCPA’s prohibition on unsolicited calls made using “automatic telephone dialing services” does not extend to calls made using a pre-existing list of numbers, thus significantly narrowing liability for businesses that use pre-existing lists. In other words, with a pre-existing list, a company can automatically dial at will without incurring liability under the TCPA.
The facts of Glasser involved two women, Glasser and Evans, who each received multiple unsolicited phone calls over a year. Glasser received 13 such calls from a timeshare marketer, and Evans received 35 such calls from a loan servicer about unpaid student loans. The services which made the calls to Glasser and Evans did not, for most of the calls, use a dialing system that randomly generated their phone numbers. Rather, the services dialed the phone numbers from pre-made lists.
For three major reasons, the Eleventh Circuit adopted the defendants’ stricter reading of the “automatic telephone dialing system” definition. First, the court found that, grammatically, the construction of the definition would appear to have “using a random or sequential number generator” modify both conjoined verbs that preceded it. Second, the court noted that, although both readings of the definition would produce some measure of superfluity, the defendants’ reading represented the lesser of two evils. Although the defendants’ reading would make the phrase “to store” somewhat superfluous—just about every device that can generate numbers automatically can also store them automatically—the plaintiffs’ reading would render the phrase “using a random or sequential number generator” meaningless because most telephone devices can store numbers from a list and then call them. Third, the Eleventh Circuit reasoned that the historical context behind the TCPA’s passage supported the finding that Congress intended the “automatic telephone dialing system” phrase to prohibit inadvertent calls made using an automatically stored or generated list, rather than deliberate calls made using an existing list. On this point, the court noted how the Federal Communication Commission had accepted the defendants’ narrow reading for over a decade after the TCPA’s enactment, only adopting the plaintiffs’ broader reading after the industry had shifted beyond what the TCPA’s plain text could handle.
Thus, in defining an “automatic telephone dialing system,” the Eleventh Circuit adopted a reading that would require that the system either randomly store numbers or randomly generate them.
And this 2020 decision from the Eleventh Circuit proved prescient: In April of this year, the Supreme Court, in a case known as Facebook v. Duguid, No. 19-511 (Apr. 1, 2021), held the same. In a near-unanimous opinion authored by Justice Sotomayor, the Court held that “to qualify as an ‘automatic telephone dialing system,’ a device 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.”
So, within the Eleventh Circuit, that billion-dollar question had been settled for some months, but for the rest of the country, the Supreme Court made it official this spring.
The web of consumer-oriented federal statutes is almost unimaginable, but at least it can be managed when businesses can count on the law to mean what it actually says. So that web becomes significantly scarier when the texts of these consumer-oriented statutes are stretched beyond their plain meaning. It is thus always a welcome sight in the business community when the courts rein in such interpretations, as the Eleventh Circuit did here in Glasser and the Supreme Court did in Facebook.
Charles W. Prueter is a trial and appellate lawyer at Waller Lansden Dortch & Davis, LLP, in Birmingham. He can be reached by email at charles.prueter@wallerlaw.com.
