In Pinkus v. Sirius XM Radio, Inc., 2018 WL 3586186, at *7–9 (N.D.Ill., 2018), Judge Feinerman found that an ATDS must have the capacity to generate numbers randomly or sequentially and then to dial them, even if that capacity is not deployed for practical reasons.
[T]he court must first assess ACA International’s scope. For the reasons stated below, ACA International invalidated not only the 2015 Declaratory Ruling’s interpretation of the statutory term ATDS, but also the 2008 Declaratory Ruling’s and 2003 Order’s interpretation of that term. It follows that this court must interpret the term as an original matter and decide whether it encompasses the predictive dialers that Pinkus alleges were used to place the calls to his cell phone. For the reasons stated below, it does not. . .With the D.C. Circuit having invalidated the FCC’s ruling that the statutory term ATDS includes all predictive dialers, this court must address the issue as an original matter and then decide whether Pinkus has alleged that the calls placed to him were made using an ATDS. . . .Although it invalidated the FCC’s rulings, ACA International did not itself articulate a definitive view of which functions characterize an ATDS. See 885 F.3d at 703 (noting that “[i]t might be permissible” for the FCC to conclude either that a device can “qualify as an ATDS only if it can generate random or sequential numbers to be dialed” or that it can “so qualify even if lacks that capacity”). Pinkus’s sole argument on that issue is that a “predictive dialer” as the 2003 Order described it—“hardware” that, “when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers,” 18 FCC Rcd. at 14091 ¶ 131—qualifies as an ATDS. Doc. 114 at 6, 19-20, 26. Given this, the parties’ dispute can be reduced to the question whether a predictive dialing device that calls telephone numbers from a stored list of numbers—rather than having generated those numbers either randomly or sequentially—satisfies the statutory definition of ATDS. . . . Because the phrase “using a random or sequential number generator” refers to the kinds of “telephone numbers to be called” that an ATDS must have the capacity to store or produce, it follows that that phrase is best understood to describe the process by which those numbers are generated in the first place. True, the statute does not use the verb “generate.” But the phrase “using a random or sequential number generator” indicates that a number generator must be used to do something relevant to the “telephone numbers to be called”—most naturally, either to generate the numbers themselves, or to generate the order in which they will be called. . . So, the phrase “using a random or sequential number generator” necessarily conveys that an ATDS must have the capacity to generate telephone phone numbers, either randomly or sequentially, and then to dial those numbers. See Dominguez v. Yahoo, Inc., 629 F. App’x 369, 372 (3d Cir. 2015) (holding that “ ‘random or sequential’ number generation … refers to the numbers themselves rather than the manner in which they are dialed”). This interpretation finds support in the FCC’s pre-2003 understanding of the statutory term ATDS. The 1992 Order expressed the view that “[t]he prohibitions of § 227(b)(1)”—which, as noted, make it unlawful to use an ATDS under certain conditions—“clearly do not apply to functions like ‘speed dialing,’ ‘call forwarding,’ or public telephone delayed message services (PTDMS), because the numbers called are not generated in a random or sequential fashion.” 7 FCC Rcd. 8752, 8776 ¶ 47. And in a follow-on 1995 ruling, the Commission described “calls dialed to numbers generated randomly or in sequence” as “autodialed.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 10 FCC Rcd. 12391, 12400 ¶ 19 (1995). The FCC’s pre-2003 understanding of § 227(a)(1) thus reinforces what its plain text shows—that equipment qualifies as an ATDS only if it has the capacity to “function … by generating random or sequential telephone numbers and dialing those numbers.” Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018). . . .But it does not change the fact that the best reading of 47 U.S.C. § 227(a)(1) requires that an ATDS have the capacity to generate numbers randomly or sequentially and then to dial them, even if that capacity is not deployed for practical reasons. And that defining characteristic of an ATDS defeats Pinkus’s claim, for he concedes that his complaint does not plausibly allege that he was called with a device that has the capacity to store or produce numbers that have been randomly or sequentially generated. See Dominguez, 894 F.3d at 121 (granting summary judgment where the plaintiff could not “point to any evidence that … [the device at issue] had the present capacity to function as an autodialer by generating random or sequential telephone numbers and then dialing those numbers”).