In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043, 2020 U.S. App. LEXIS 23935 (6th Cir. July 29, 2020), the Court of Appeals for the Sixth Circuit followed Mark’s interpretation of the TCPA as to what constitutes an auto dialer.
Here, again, we agree with the Second and Ninth Circuits [*15] that the structure and context of the autodialer ban support an interpretation of ATDS that would cover stored-number systems like the Avaya system in this case. See Duran, 955 F.3d 279; Marks, 904 F.3d at 1051-52.5 HN11 Whatever Congress’s purpose may have been at the time of enactment, “language in the statute indicates that equipment that made automatic calls from lists of recipients [is] also covered by the TCPA.” Marks, 904 F.3d at 1051. One exception to the autodialer ban, found in the same section of the TCPA as the autodialer definition, shores up any ambiguity. HN12 The TCPA’s autodialer ban contains an exception for calls “made with the prior express consent of the called party.” § 227(b)(1)(A). Consenting recipients are known persons whose numbers are stored on a list. See Marks, 904 F.3d at 1051; Glasser, 948 F.3d at 1316 (Martin, J., concurring in part and dissenting in part). In order to give their express consent prior to receiving a call, they must give their number to the entity making the call. Thus, the entity making the automated call is dialing a stored number—not a number that it randomly generated. The consent exception is key to defining ATDS because an exception cannot exist without a rule. An exception for consented-to calls implies that the autodialer ban otherwise could be interpreted to prohibit consented-to calls. And consented-to calls by their nature are calls made to known persons, i.e., persons whose numbers are stored on a list and were not randomly generated. Therefore, the TCPA’s exception for calls made to known, consenting recipients implies that the autodialer ban applies to stored-number systems. Under the Seventh and Eleventh Circuits’ interpretation of “store,” the numbers to be dialed must have been randomly generated at some point. But as the consent exception makes clear, the autodialer ban covers calls made to known recipients—in other words, people whose numbers are known and are stored on a list. Calls made from a stored list of numbers accordingly are subject to the autodialer ban. [**11] To combat this reading, the Eleventh Circuit suggests that the consent exception simply does not apply to automated calls. It notes, for this point, that the TCPA regulates not just automated calls, but also calls using a prerecorded or artificial voice. See Glasser, 948 F.3d at 1311-12. The Eleventh Circuit speculates that it was those prerecorded or artificial voice calls that Congress sought to permit with the consent exception. See id. “But,” as the Second Circuit observed, “the language of the statute does not make that distinction.” Duran, 955 F.3d 279 n.20. There is no basis at all in the text of the statute for the Eleventh Circuit’s bald assertion that the consent exception does not apply to automated calls.6 We additionally note that the autodialer ban was amended in 2015 to permit collection calls “made solely pursuant to the collection of a debt owed to or guaranteed by the United States.” § 227(b)(1)(A)(iii). The Supreme Court recently struck that exception because it “impermissibly favored [government-]debt-collection speech over political and other speech, in violation of the First Amendment.” See Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 207 L. Ed. 2d 784, 2020 WL 3633780, at *2 (2020) (“AAPC”) (Kavanaugh, J.). The Court severed that provision from the remainder of the autodialer ban, so that political automated calls would be “treated equally with debt-collection speech.” Id. Prior to the Court’s decision in AAPC, the Second and Ninth Circuits reasoned that an exception to the autodialer ban for government-debt collectors implies that the TCPA prohibits automated collection calls made to collect on private debts. See Marks, 904 F.3d at 1051-52; Duran, 955 F.3d at 285. HN13 Like consented-to calls, calls made to collect on a debt are calls made to known recipients. See Marks, 904 F.3d at 1052. These calls are dialed from a stored list of numbers because the debt-collection industry uses known numbers, not random numbers. See Appellant Br. at 5 (“Obviously, a loan servicer like PHEAA would have no interest in randomly calling borrowers.”). They are targeting known persons to collect on their debts. “[T]he only way this exception [for calls made by government-debt collectors] makes sense is if an ATDS can make calls or texts using a human-generated list of phone numbers.” Duran, 955 F.3d at 285. The now-defunct government-debt-collection exception implies that the autodialer ban covers stored-number systems.7 We see no reason to strain the text of the autodialer definition itself when related provisions inform its meaning. HN14 “[I]f an examination of the statute’s text, context, and structure produces an answer to our interpretation question, we need inquire no further.” In re Application to Obtain Discovery, 939 F.3d at 718. We therefore are not persuaded by the Seventh and Eleventh Circuits’ analysis of the administrative and legislative history of § 227 and the purported practical effects of our interpretation.