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February 11, 2019 Practice Points

Competing Definitions of an Auto-Dialer under the TCPA

A concise recap of the competing interpretations of this key definitional component of the law.

By Christopher Roberts and Mark E. Rooney

In light of the diverging views of what courts consider to be an automatic telephone dialing system (ATDS) as defined by the Telephone Consumer Protection Act (TCPA), we present this concise (and non-exhaustive) recap of the competing interpretations of this key definitional component of the law.

The Statutory Definition

The TCPA defines an “automatic telephone dialing system” 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.” 47 U.S.C. § 227(a)(1). Courts and the FCC have grappled with the meaning of this term.

The Plaintiff’s Perspective

Plaintiffs in TCPA actions present a variety of arguments as to why the relevant dialing system is an ATDS.

As one example, plaintiffs frequently argue that the Federal Communications Commission (FCC) has consistently held that systems having the capability to dial large volumes of numbers with minimal human intervention are considered to be automatic telephone dialing systems. See generally Maes v. Charter Commc’n, 345 F. Supp.3d 1064 (W.D. Wisc. Oct. 30, 2018).

Plaintiffs also argue, regardless of the FCC’s rulings, that the plain statutory language of the TCPA supports the argument that a system that can dial a high volume of telephone numbers with minimal human intervention is an ATDS. In other words, plaintiffs argue that an ATDS includes systems that do not themselves generate random or sequential numbers. This was the argument adopted by the Ninth Circuit Court of Appeals in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018).

In support of this argument, the Marks court noted that the TCPA was amended in 2015 to exempt the use of an ATDS to make calls to collect debts owed or guaranteed by the United States. The Marks court held:

This debt collection exception demonstrates that equipment that dials from a list of individuals who owe a debt to the United States is still an ATDS but is exempted from the TCPA's strictures. Moreover, in amending this section, Congress left the definition of ATDS untouched, even though the FCC's prior orders interpreted this definition to include devices that could dial numbers from a stored list. We “presume that when Congress amends a statute, it is knowledgeable about judicial decisions interpreting the prior legislation.”

Id. at 1052. In other words, Congress contemplated that an ATDS could be a system that dialed numbers from a stored list, rather than solely a system that generated random or sequential numbers.

The Defendant’s Perspective

Defendants in TCPA actions generally stress the definitional requirement that, to be an ATDS, the equipment must “us[e] a random or sequential number generator.” That phrase applies both to the “stor[ing]” and “produc[ing]” of telephone numbers. Restated in more logical fashion, this means that an ATDS must have the capacity to:

  • store numbers, using a random or sequential number generator; or
  • produce numbers, using a random or sequential number generator.

Conversely, if the equipment merely stores a list of phone numbers—not created by a random or sequential number generator (for example, a list of your 10 best friends and their numbers)—then it’s not an ATDS.

This view was recently articulated and applied in Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2018 WL 6426677, at *2 (N.D. Ill. Nov. 29, 2018). The court granted summary judgment for the defendant Yahoo after concluding that Yahoo’s text-message system, the object of the plaintiff’s TCPA complaint, was not an ATDS under the statute because it merely stored numbers from a database of known customers and did not employ a random or sequential number generated. The court rejected the notion that its interpretation ignores the statutory reference to “stor[ing]” numbers:

This does not make the term “store” superfluous. The word “store” ensures that a system that generated random numbers and did not dial them immediately, but instead stored them for later automatic dialing (after, for example, some human intervention in activating the stored list for dialing) is an ATDS. This is consistent with the problem, including database marketing, Congress addressed in the TCPA.

Id. at *2, n.4.


Courts and practitioners no doubt will continue debating the proper way to interpret the definition of an ATDS. In the meantime, click here for the full audio transcript of our Roundtable discussion for a more complete discussion about these issues.

Christopher Roberts is a partner at Butsch Roberts & Associates LLC in St. Louis, Missouri. Mark E. Rooney is the principal and founder of The Rooney Firm PLLC in Washington, D.C. Both are cochairs of the Consumer Litigation Committee’s Subcommittee on TCPA and FDCPA Litigation.

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