Greenspoon Marder Client Alert: You Can “Predict” You Will Get A Lawful Marketing Call

Jan 29, 2020

By: Beth-Ann E. Krimsky, Esq., Robby H. Birnbaum, Esq., Jeffrey A. Backman, Esq., Jamey R. Campellone, Esq., and Gregg Strock, Esq.

Earlier this week, in Glasser v. Hilton Grand Vacations Co., LLC, No. 18-14499, the Eleventh Circuit joined the Third Circuit in finding that random or sequential number generation is required in order for a telephone system to be considered an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). This most recent ruling has now deepened the divide of the meaning of an ATDS in the Circuit Courts of Appeals.

In a well-reasoned opinion, Judges William H. Pryor, Jr., Beverly Martin, and Jeffery Sutton (sitting by designation from the United States Court of Appeals from the Sixth Circuit) first analyzed the definition of an ATDS using conventional rules of grammar and punctuation. Relying, in part, on Justice Antonin Scalia and Bryan Garner’s book entitled Reading Law: The Interpretation of Legal Texts, the Court analyzed the plain language of the TCPA and concluded that devices that do not dial numbers “generated in random or sequential fashion” are not auto dialers. Thus, dialing from a list of pre-loaded numbers, such as with a predictive dialer, would not constitute the use of an ATDS.

Moreover, the Court noted that the D.C. Circuit’s opinion in ACA International v. Federal Communications Commission et al. “wiped the slate clean” on the FCC’s interpretations that gradually expanded the reach of the ATDS definition under the TCPA. With the fog over the definition clearing, only the statutory text remains: “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.” And, to the Court’s point, prior to the FCC’s seeming expansion of the statute, there was more than a decade of agreement that the ATDS provision of the TCPA “did not cover calls ‘directed to . . . specifically programmed contact numbers,’ only to those ‘randomly or sequentially generated telephone numbers.’”

The Court also affirmed the human intervention standard, finding that even if the statute covers devices that can automatically dial a stored list of non-randomly generated numbers, a device still would not qualify as an ATDS when it “requires meaningful human interaction to dial telephone numbers.” This opinion will likely be advanced to support those companies using click-to-dial platforms or common cloud-based texting platforms, such as EZ Texting.

So what does this all mean? Most businesses, if not all, are not using an ATDS under the Eleventh Circuit’s standard. However, businesses still need to be mindful of the TCPA, a complicated statute that covers much more than auto dialers. For example, the use of a prerecorded voice in many circumstances would still be in violation of the TCPA without the proper consent, even if done with a predictive dialer. Further, depending on the jurisdiction a business operates in, or contacts consumers in, the standard may be different. Particularly given the use of cell phones that travel with us – calling into the wrong state could create an issue. As of today, there are 28 decisions (including two Circuit Court opinions) finding that random or sequential number generation is required for the equipment to be considered an ATDS, and 23 decisions (including a one Circuit Court opinion) finding that predictive dialers can still qualify even without random or sequential number generation. Companies should strongly consider having qualified compliance and litigation counsel address these differing standards with them so as to steer clear of potential liability.

About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 225 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has maintained a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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Greenspoon Marder Client Alert: You Can “Predict” You Will Get A Lawful Marketing Call

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