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Eleventh Circuit Robocall Decision Highlights ‘Autodialer’ Split

Jan. 29, 2020, 11:30 AM

A federal appeals court’s narrow definition of what constitutes an automatic telephone dialing system may benefit companies facing lawsuits that allege use of the technology violates an anti-robocall statute.

The U.S. Court of Appeals for the Eleventh Circuit has held that autodialers under the Telephone Consumer Protection Act require the use of randomly or sequentially generated phone numbers. That ruling differs from a Ninth Circuit opinion in 2018 that defined the term autodialer more broadly.

The Eleventh Circuit’s reasoning is “so compelling that it is likely to have a major impact on future decisions issued by courts outside” the circuit, said Eric Troutman, a partner at Squire Patton Boggs who focuses on TCPA litigation and compliance.

The Jan. 27 decision highlights the continued uncertainty around what devices could violate the law and sets up a potential U.S. Supreme Court battle to clarify the issue.

“The Eleventh Circuit has provided us with a thoughtful opinion on the proper interpretation” of the definition of autodialer, said Artin Betpera, a business litigation partner at Womble Bond Dickinson. That definition “is at the heart of almost every one of the thousands of federal TCPA lawsuits filed each year,” he said.

The TCPA restricts the use of autodialers to call or text consumers without consent. Courts across the country have grappled with what equipment falls under the law’s definition after the D.C. Circuit vacated a Federal Communications Commission order that interpreted the term broadly.

Disputed Term

The Eleventh Circuit opinion encompassed two cases filed under the robocall law.

A Florida plaintiff, Melanie Glasser, alleged that timeshare marketer Hilton Grand Vacations Company LLC called her thirteen times about vacation offers using an autodialer.

A Georgia plaintiff, Tabitha Evans, alleged that the Pennsylvania Higher Education Assistance Agency called her 35 times about unpaid loans.

The companies had disputed that the systems they used to make calls counted as autodialers under the law.

The Eleventh Circuit ruled that the law doesn’t cover the phone systems in either case because neither “used randomly or sequentially generated numbers.” The phone system in Glasser’s appeal wasn’t an autodialer because it required human intervention, the court found.

Part of the court’s analysis hinged on grammar rules and whether the phrase “using a random or sequential number generator” modifies both the verbs “store” and “produce,” or just “produce” and not “store.”

“Clarity, we lament, does not leap off this page of the U.S. Code,” Judge Jeffrey S. Sutton wrote in the split opinion.

The Ninth Circuit in Marks v. Crunch San Diego LLC in 2018 said that the definition includes devices that can automatically dial phone numbers that are stored in a list. The Third Circuit has also weighed in on the issue, in an approach more similar to the Eleventh Circuit, attorneys said.

The Supreme Court may address the issue in the future because of the split between the Eleventh and Ninth Circuits, attorneys said.

“Courts across the country are hungry for the Supreme Court to take up this issue and provide some clarity,” said Danielle Newman, a litigation associate at Manatt, Phelps & Phillips LLP.

The Facebook v. Duguid case gives the Supreme Court an opportunity to weigh in on the autodialer definition though the high court hasn’t yet indicated whether it will hear the case. The Supreme Court earlier this month granted a petition to review a Fourth Circuit case, Barr v. Am. Ass’n of Political Consultants Inc., involving the constitutionality of the robocall law.

Going Forward

The Eleventh Circuit ruling may help resolve pending cases that strictly involve autodialer claims in that circuit, which includes Alabama, Florida, and Georgia, attorneys said.

“This opinion will take a big chunk out of TCPA cases in the Eleventh Circuit’s footprint, including states like Florida that have been a hotbed of litigation,” Betpera said.

But because the ruling only addresses autodialers, “it will continue to be full steam ahead on claims involving prerecorded calls, faxes, and calls to numbers on the national do-not-call registry,” Betpera said.

The Seventh Circuit may rule soon on another case, Gadelhak v. AT&T Services, which also addresses whether the term autodialer requires random or sequential number generation.

If the Seventh Circuit follows the Eleventh Circuit, “it’s very unlikely any other circuit is going to stretch and take the Ninth’s approach,” Troutman said. That could leave the the Ninth Circuit ruling “isolated,” he said.

The case is Glasser v. Hilton Grand Vacations Co., 2020 BL 27069, 11th Cir., No. 18-14499, 1/27/20.

To contact the reporter on this story: Sara Merken in Washington at smerken@bloomberglaw.com

To contact the editor responsible for this story: John Hughes at jhughes@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com

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