In Gadelhak v. At&T Servs., No. 17-cv-01559, 2019 U.S. Dist. LEXIS 55200 (N.D. Ill. Mar. 29, 2019), Judge Chang dismissed a TCPA claim for absence of use of an ATDS.

Because ACA International invalidated the Commission’s prior orders defining the term ATDS—and also declined to articulate their own definition of the term—the Court moves on to interpreting the TCPA unburdened by the Commission’s definitions. Here, the pertinent question is really whether predictive-dialing devices that lack the capacity to generate numbers either randomly or sequentially, and instead only dial numbers from a predetermined list, meet the statutory definition of ATDS. AT&T argues that the statutory text dictates a “no” answer, Def.’s Br. at 11-13, while Gadelhak asserts that a device “that stores telephone numbers to be called and automatically dials those numbers falls within [the] statutory definition,” Pl.’s Br. at 6 (emphasis in original). The Court “must [*14]  begin with [the TCPA’s] text and assume that the ordinary meaning of that language accurately expresses the legislative purpose.” Our Country Home Enters., Inc. v. Comm’r, 855 F.3d 773, 791 (7th Cir. 2017) (interpreting 28 U.S.C. § 6330(c)(4)(A)) (cleaned up). In other words, the Court must give the TCPA its plain meaning. Coleman v. Labor & Indus. Review Comm’n of Wis., 860 F.3d 461, 473 (7th Cir. 2017). . . . This Court respectfully disagrees with the Ninth Circuit’s holding in Marks and Gadelhak’s argument here. At the outset, Gadelhak’s reading of § 227(a)(1) is difficult to square with the plain language of that provision. Both “store” and “produce” are transitive verbs, meaning both require an object. Pinkus, 319 F. Supp. 3d at 937-38. Here, that object is “telephone numbers to be called.” § 227(a)(1). And the phrase “using a random or sequential number generator” modifies neither “store” nor “produce,” but instead actually modifies “telephone numbers to be called.” Id. This is evidenced by the phrase’s position immediately after “telephone numbers to be called.” Id. Put another way, the most sensible reading of the provision is that the phrase “using a random or sequential number generator” describes a required characteristic of the numbers to be dialed by an ATDS—that is, what generates the numbers. . . . Gadelhak’s final argument is that the Court’s reading of § 227(a)(1) renders the word “store” superfluous, “because any number that is stored using a random or sequential [*18]  number generator must logically also have been produced using a random or sequential number generator.” Pl.’s Br. at 11. At the outset, even if this were true, it would not, by itself, justify disregarding the plain meaning of the provision. “The canon against surplusage is not an absolute rule.” Marx v. General Revenue Corp., 568 U.S. 371, 385 (2013). More important, the Court’s interpretation does not actually render “store” superfluous. The word’s presence in the provision ensures that systems that generate numbers randomly or sequentially, but then store the numbers for a period of time before dialing them later after a person has intervened to initiate the calls, are still covered by the statutory definition of ATDS. All in all, none of Gadelhak’s arguments are persuasive; instead, the numbers stored by an ATDS must have been generated using a random or sequential number generator.

D. Application to AT&T’s TACRFT Program Gadelhak concedes that the system employed by AT&T for its TACRFT program “generates a list of telephone numbers to be called via automated computer processes.” Pl.’s Br. at 12. Based on this description, AT&T’s system is not an ATDS as defined in the statute. Gadelhak makes the additional argument, though, that “AT&T’s [*19]  dialing system also uses a random number generator to produce telephone numbers to be called.” Id. at 13. In support of this assertion, Gadelhak cites to deposition testimony from AT&T’s Director-Market Research & Analysis, Kerry Lyon. Id.; Lyon Dep. at 141:22-143:19; Lyon Dec. ¶ 1. Lyon stated that, when AT&T’s system was confronted with an account that had more than one cellular phone number listed, he was not sure how the system chose which cellular number to call: “[I]t could be randomized, I’d have to look at the code.” Lyon Dep. at 143:16-17. Gadelhak latched onto this comment as proof that AT&T’s system was generating telephone numbers randomly. Lyon, however, later submitted a declaration in which he clarified that the AT&T system “selects the first eligible wireless number to send the survey system.” Lyon Dec. II ¶ 5. Even so, Gadelhak continued to argue that Lyon’s testimony was proof that AT&T’s system at least had the capacity to generate numbers randomly, because it was able to “randomly” select numbers to dial from the compiled list of accounts. Pl.’s Br. at 13 (“Plaintiff pointed to the deposition testimony of Kerry Lyon, who testified that when the initial list of telephone numbers [*20]  contains multiple telephone numbers for the same account, the computer randomly selects one of those numbers to receive the text message and thus randomly generates that number for dialing.”). But the D.C. Circuit already explained that numbers must necessarily “be called in some order—either in a random or some other sequence.” ACA International, 885 F.3d at 702 (emphasis in original). Accordingly, the phrase “using a random or sequential number generator” would be meaningless if it simply referred to the order in which calls were made. Moreover, the organization of the provision does not support a reading where “using a random or sequential number generator” refers to the order numbers from a list are dialed. Otherwise, the provision would read “to store or produce telephone numbers to be called; and to dial such numbers, using a random or sequential number generator.” Based on the record evidence, there is no genuine dispute that AT&T’s system cannot generate telephone numbers randomly or sequentially—as those terms are used in the TCPA—and thus it is not an ATDS and is not prohibited.