In Glasser v. Hilton Grand Vacations Company, LLC, (No. 18-14499), the Court of Appeals for the Eleventh Circuit held that the Court of Appeals for the Ninth Circuit got it wrong in Marks.
After they each received over a dozen unsolicited phone calls, some about repaying a debt, others about buying vacation properties, Melanie Glasser and Tabitha Evans sued the companies that called them for violating the Telephone Consumer Protection Act. Both women allege that the companies placed the calls through “Automatic Telephone Dialing Systems,” which the Act regulates and restricts. Because neither phone system used randomly or sequentially generated numbers and because the phone system in Glasser’s appeal required human intervention and thus was not an auto-dialer, the Act does not cover them. . . .Evans and Glasser resist this conclusion on several grounds. They insist that we must follow the Commission’s interpretation, adopted in the 2003 and affirmed in 2008. Why? A different law, the administrative Hobbs Act, requires any challenge to an agency decision, like these orders, to go through a specific process not used here. See Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1049 (9th Cir. 2018). Since the time for that type of review has passed, they say, the Commission’s rulings govern our application of the statute. But they do not come to grips with the reality that the D.C. Circuit, in a Hobbs Act proceeding of its own, wiped the slate clean. ACA Int’l, 885 F.3d at 703; Marks, 904 F.3d at 1049–50; Dominguez, 894 F.3d at 119; Pinkus v. Sirius XM Radio Inc., 319 F. Supp. 3d 927, 932–35 (N.D. Ill. 2018) (collecting cases). The court reviewed the relevant parts of the orders and “set aside the Commission’s treatment of those matters.” ACA Int’l 885 F.3d at 703. . .More profitably, but not profitably enough, Evans and Glasser invoke the Ninth Circuit’s decision on the merits in Marks, a thoughtful opinion by Judge Ikuta. The court construed § 227 to cover devices with the capacity to automatically dial telephone numbers from a stored list or to dial telephone numbers produced from a random or sequential number generator. 904 F.3d at 1050–53. We appreciate, as shown, a key source of the court’s hesitation—the instinct against “using a random or sequential number generator” to “store” telephone numbers. Id. at 1050–51. But this approach creates problems of its own, as we have also shown. To adopt this reading, one must separate the statute’s two verbs (“to store or produce”), place the verbs’ shared object (“telephone numbers to be called”) in between those verbs, then insert a copy of that shared object to the statute, this time after the now separate verb “to produce” to make clear that “using a random or sequential number generator” modifies only “to produce.” That looks more like “surgery,” in the words of Hilton, than interpretation. Br. 35.
As to human intervention, the Court of Appeals held that the human’s role did not “intervene” in the dialer’s activities: it was required.
Glasser does not deny that humans play this role in placing calls. And she does not deny that the statute extends only to “automatic,” not human dialing. She instead deems the human tasks associated with these systems so immaterial that they should not matter to our analysis of whether the device automatically dials numbers or not. But this system demands far more from its human operators than just “turning on the machine or initiating its functions,” Marks, 904 F.3d at 1052–53, steps we agree would occur before an auto-dialer begins operating. The technology before us requires meaningful human interaction to dial telephone numbers: An employee’s choice initiates every call. Yes, the system dials the numbers itself. But no one would think that telling a smartphone to dial the phone number of a stored contact (or several contacts) means the smartphone has automatically dialed the number. Human intervention is necessary there, just as it is here, to initiate the call.
A copy of the decision can be found http://media.ca11.uscourts.gov/opinions/pub/files/201814499.pdf.