In Smith v. Premier Dermatology, No. 17 C 3712, 2019 U.S. Dist. LEXIS 152887 (N.D. Ill. Sep. 9, 2019), Judge Alonso found that no ATDS was used to send text messages and granted summary judgment against a TCPA Plaintiff.
While this Court might quibble with the grammatical analysis of Pinkus in some particulars, it agrees with its central insight that the phrase “using a random or sequential number generator,” following the phrase “to store or produce telephone numbers to be called,” is “best understood to describe the process by which those numbers are generated in the first place.” 319 F. Supp. 3d at 938. As the court explained, it is “grammatically unlikely” that the phrase, “using a random or sequential number generator,” “modifies only ‘produce’ and not ‘store,'” because “‘a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one where the phrase is separated from the antecedents by a comma.'” Id. (quoting Yang v. Majestic Blue Fisheries, LLC, 876 F.3d 996, 1000 (9th Cir. 2017)). Some courts have struggled to see “how a number generator could be used to ‘store’ telephone numbers,” see Pinkus, 319 F. Supp. 3d at 938, but this Court finds nothing so strange about it. “The word ‘store’ ensures that a system that generated random numbers and did not dial them immediately, but instead stored them for later automatic dialing (after, for example, some human intervention in activating the stored list for dialing) is an ATDS.” Johnson, 346 F. Supp. 3d at 1162 n.4. Thus, “the phrase ‘using a random or sequential number generator’ applies to the numbers to be called,”—specifically, it describes how they were generated for calling—”and an ATDS must either store or produce those numbers (and then dial them).” Id. at 1162. In summary, then, the plain text of the statutory definition provides that an ATDS is a device that (1) stores or produces telephone numbers that (2) were randomly or sequentially generated and (3) dials them automatically. Because the Court finds that the statutory definition is not ambiguous, it need not reach plaintiffs’ arguments about “the context and the structure of the statutory scheme.” See Marks, 904 F.3d at 1051. But even if the Court were to consider them, they are unpersuasive. Plaintiffs argue that the statute’s exemption for ATDS calls made with “prior express consent of the called party” is meaningless if an ATDS must generate numbers randomly or sequentially, because no one using an ATDS to make calls at random would have any opportunity to determine whether the called party had consented to the call. Similarly, the TCPA allows for treble damages for willful or knowing violations, 47 U.S.C. § 227(b)(3), but this provision, too, according to plaintiffs, is meaningless if applied to ATDS calls made at random, for a similar reason: calling at random could never be a willful or knowing violation because the caller would never know in advance that the called party had not consented to the call. But the Court is not convinced. First, it does not follow from the fact that all ATDSs must have the capacity to use randomly or sequentially generated numbers that they cannot but call numbers at random or in sequence; rather, “it is possible to imagine a[n] [ATDS] device that both has the capacity to generate numbers randomly or sequentially and can be programmed to avoid dialing certain numbers, including numbers that belong to customers who have not consented to receive calls from a particular marketer.” Pinkus, 319 F. Supp. 3d at 939. Second, even assuming no such device were possible and ATDS calls were necessarily to random or sequential numbers, it does not follow that the “prior express consent” and “willful or knowing violation” language in the statute is meaningless or superfluous because in neither case does the language apply only to ATDSs. In 47 U.S.C. § 227(a)(1)(A), “prior express consent” exempts a caller from liability for making any call to a cellular phone “using any [ATDS] or an artificial or prerecorded voice.” Id. (emphasis added). The “willful or knowing violation” language applies not only to the prohibition on calls to cellular phones using an ATDS or artificial or prerecorded voice in § 227 (a)(1)(A) but also to the similar prohibition on such calls to residential phones in subsection (B), the prohibition on junk faxes in subsection (C), and so on. It might well have been Congress’s intention for these particular provisions to do little or no work in relation to ATDS calls; the Court disagrees with plaintiffs that it would be absurd to so interpret the statute. Similarly, plaintiffs argue that the TCPA’s exemption for calls made to collect government debt, see 47 U.S.C. § 227(b)(1)(A)(iii), would serve no purpose if an ATDS must be capable of generating numbers randomly or sequentially; any caller seeking to collect a debt would attempt to call the debtor’s number, not a random number. But again, this argument ignores the “artificial or prerecorded voice” language in § 227(a)(1)(A), which provides an independent basis for the exemption. More fundamentally, whatever slight persuasive value plaintiffs’ structure-and-context arguments might have, they cannot overcome the plain meaning of the statutory language. The TCPA defines an ATDS as a device that is capable of using randomly or sequentially generated numbers. It is not genuinely disputed that the eRelevance system does not currently have, and at no point did have, the capacity to use randomly or sequentially generated numbers for its marketing [*19] campaigns; eRelevance only had the capacity to send text messages to client-provided phone numbers. Plaintiffs purport to dispute this fact by citing an eRelevance executive’s deposition testimony that the system can be “programmed to do anything that is computationally possible.” (Pl.’s LR 56.1 Resp. ¶ 15.) But this is insufficient to create a genuine dispute of fact because, as ACA International explained, it is the system’s “present capacity,” not its “potential capacity,” that matters. 885 F.3d at 695-96, 699-700. The Court agrees with the D.C. Circuit that interpreting the word “capacity” in the TCPA’s definition of an ATDS to mean “potential capacity,” i.e., capacity a device lacks at present but might gain after a modification such as an app download, is “utterly unreasonable in the breadth of its regulatory inclusion.” Id. at 699 (internal quotation marks and alteration omitted). But this unreasonable interpretation, soundly rejected in ACA International, is exactly what plaintiffs urge by suggesting that the eRelevance system is an ATDS because it can be “programmed” to generate random or sequential numbers. What matters is not what the device has the potential to do, depending on how it might be “programmed” in the future, but what it can actually do, and it must be able to use randomly or sequentially generated numbers. Plaintiffs have not shown that there is a genuine factual dispute as to whether the eRelevance system could use randomly or sequentially generated numbers when they received the offending text messages. The proposed testimony of plaintiffs’ expert witness, Randall Snyder, is of no help to them in this regard. Mr. Snyder proposes to testify that the eRelevance system is an ATDS under the TCPA because it automatically sends text messages to stored numbers. (See Snyder Report ¶¶ 69-75, ECF No. 109-1.) But, as the Court has explained, that is not the proper standard; an ATDS must have the capacity to use randomly and sequentially generated phone numbers. Plaintiffs do not dispute that Mr. Snyder does not propose to testify that the eRelevance system had or has that capacity (Pls.’ LR 56.1 Resp. ¶¶ 16, 20),1 nor have plaintiffs pointed to other evidence creating a genuine factual dispute on that point. Because the eRelevance system cannot use randomly and sequentially generated phone numbers, the system does not qualify as an ATDS. Defendants’ text-message marketing campaigns therefore did not violate the TCPA, and defendants are entitled to summary judgment.