In Hagood v. Portfolio Recovery Assocs., LLC, No. 3:18-CV-1510-NJR, 2020 U.S. Dist. LEXIS 47507 (S.D. Ill. Mar. 19, 2020), Judge Rosenstengel followed the Gadelhak decision and granted summary judgment to a TCPA defendant, finding that no ATDS was used under the TCPA.
Hagood argues that this definition of an ATDS should be construed to cover any device that automatically dials a list of stored numbers en masse, relying on the Seventh Circuit’s 2017 decision in Blow v. Bijora, Inc., 855 F.3d 793, 802 (7th Cir. 2017). In that case, the Seventh Circuit adopted the view expressed by the Federal Communication Commission in 2015 that “predictive dialers, which have the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers,” meet the ATDS definition. Id. Since that time, however, the interpretation of the TCPA’s definition of an ATDS has evolved. In 2018, the D.C. Circuit struck down the 2015 FCC interpretation in ACA International v. FCC, 885 F.3d 687, 695, 435 U.S. App. D.C. 1 (D.C. Cir. 2018). And on January 27, 2020, the Eleventh Circuit held a device is not an ATDS if (1) it does not use randomly or sequentially generated numbers or (2) it requires human intervention. Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1304-05 (11th Cir. 2020). The Seventh Circuit has now adopted the Eleventh Circuit’s approach. In Gadelhak v. AT&T Services, Inc.,2 decided last month, the Court of Appeals held that the phrase “using a random or sequential number generator” modifies “store” and “produce,” defining the means by which either task must be completed for equipment to qualify as an “automatic telephone dialing system.” Gadelhak, 950 F.3d at 464. Thus, if the equipment lacks the capacity to either store or produce telephone numbers using a random or sequential number generator, then it does not qualify as an ATDS. Id. at 469. Here, there is no evidence that the Avaya Proactive Contact Dialer used by PRA has the capacity to store or produce random or sequential telephone numbers and dial them. And the Avaya system is not an ATDS merely because it reorganizes preprogrammed telephone numbers into a list in a different sequence. Accordingly, because there is no genuine dispute that PRA did not use an ATDS to call Hagood’s cell phone, it did not violate the TCPA. PRA is entitled to judgment as a matter of law.