Dialer That Could not Randomly or Sequentially Generate Telephone Numbers is not ATDS

The Middle District of Florida finds that a dialing system must possess the present capability to randomly or sequentially generate telephone numbers to fall under the TCPA’s definition of an ATDS.

1/15/2020 4:00 PM

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Dialer That Could not Randomly or Sequentially Generate Telephone Numbers is not ATDS

Morgan v. Adventist Health System/Sunbelt, Inc., et al., No. 6:18-cv-1342-Orl-78DCI (M.D. Fla. Jan. 13, 2020)

A patient sought medical care from a health care system and provided the health care system and its agents with permission to call her wireless number. Later, the number was reassigned to a new subscriber who received four collection calls that were intended for the patient. The new subscriber (plaintiff) filed suit for violations of the Telephone Consumer Protection Act, alleging that the health care provider and its agents (defendants) had contacted her using an automatic telephone dialing system (“ATDS”) without her consent.

The defendants moved for summary judgment on two principal grounds: first, that they had reasonably relied on the express consent given by the reassigned telephone number’s prior subscriber; and, second, that the dialer system they had used to call the plaintiff’s number did not meet the definition of an ATDS under the TCPA because it lacked “the present capability to randomly or sequentially generate telephone numbers.”

With respect to the “prior express consent” argument, the Morgan court unfortunately found that the defendants had overreached in their suggested application of the District of Columbia Circuit Court’s decision in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018). Based on that decision the defendants argued a caller cannot be held liable for a violation of the TCPA if it reasonably relies on express consent given by a holder of a telephone number that is later reassigned. The Morgan court acknowledged that in ACA International the D.C. Circuit had, indeed, set aside the FCC’s “one-call safe harbor” as arbitrary and capricious, but it noted that the D.C. Circuit had expressed no opinion as to “whether the FCC’s reasonable reliance approach was proper” and had “held that the one-call safe harbor approach taken in the [FCC’s] 2015 declaratory ruling failed to implement a reasonable reliance approach.”  More broadly, the Morgan court found that the D.C. Circuit had set aside not just the one-call safe harbor but the FCC’s treatment of reassigned numbers as a whole. Accordingly, the Morgan court concluded that ACA International had not established either a reasonable reliance test or an exception for callers who reached reassigned numbers, and, therefore, the defendants’ reliance on the previous subscriber’s consent could not be deemed reasonable under the TCPA and the FCC’s body of regulatory law that survived ACA International.  

Happily, however, the Morgan court concurred with the defendants’ argument that their calls to the plaintiff were not made using an ATDS as defined in the TCPA. The court noted there was no dispute that the equipment the defendants had used to call the plaintiff’s number did not randomly or sequentially generate the numbers to be called but, rather, dialed numbers from a predetermined list. Despite the plaintiff’s argument that prior FCC interpretations of the TCPA had included such a system in the definition of an ATDS, the court stated that it agreed with the majority of courts in the Middle District of Florida that ACA International had invalidated those agency interpretations. On that basis, the Morgan court concluded that it was not bound by the FCC’s prior declaratory rulings as to whether the system at issue constituted an ATDS under the statute.

Importantly, the court grounded its opinion on this issue in the TCPA’s definition of an ATDS: “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” The court rejected the plaintiff’s argument that the clause “using a random or sequential number generator” modified the term “produce” but not the word “store” and held that the plain language of the statute required that a dialer “have the present ability to randomly or sequentially generate telephone numbers to be an ATDS within the meaning of the TCPA.”

Accordingly, the court concluded that the system at issue could not be deemed to be an ATDS as defined by the statute and, for that reason, the court granted the defendants’ motions for summary judgment on the plaintiff’s claims that were premised on the use of an ATDS.

In response to the decision, Chris Brewer, vice president of compliance for North American Credit Services, an ACA International member company based in Tennessee, said:

“Medical Services Inc. and North American Credit Services Inc. are pleased with the court’s order and are happy that Judge [Wendy] Berger followed the correct trend of applying the plain language of the statute to determine the definition of ATDS. The Middle District of Florida’s court order in Morgan v. Adventist Health System/Sunbelt, Inc., et al., Case No. 6:1-cv-1342-Orl-78DCI (M.D. Flo. Jan. 13, 2020) to grant the defendants’ summary judgment motions of the plaintiff’s claims based on the use of an ATDS is a significant and impactful win in our industry. We also appreciate that Judge Berger denied the class action status for plaintiff’s claims. This is the correct decision as the issue of revocation of consent is always an individualized determination and could not be litigated as a class action.”


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

Dialer That Could not Randomly or Sequentially Generate Telephone Numbers is not ATDS

Morgan v. Adventist Health System/Sunbelt, Inc., et al., No. 6:18-cv-1342-Orl-78DCI (M.D. Fla. Jan. 13, 2020)

A patient sought medical care from a health care system and provided the health care system and its agents with permission to call her wireless number. Later, the number was reassigned to a new subscriber who received four collection calls that were intended for the patient. The new subscriber (plaintiff) filed suit for violations of the Telephone Consumer Protection Act, alleging that the health care provider and its agents (defendants) had contacted her using an automatic telephone dialing system (“ATDS”) without her consent.

The defendants moved for summary judgment on two principal grounds: first, that they had reasonably relied on the express consent given by the reassigned telephone number’s prior subscriber; and, second, that the dialer system they had used to call the plaintiff’s number did not meet the definition of an ATDS under the TCPA because it lacked “the present capability to randomly or sequentially generate telephone numbers.”

With respect to the “prior express consent” argument, the Morgan court unfortunately found that the defendants had overreached in their suggested application of the District of Columbia Circuit Court’s decision in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018). Based on that decision the defendants argued a caller cannot be held liable for a violation of the TCPA if it reasonably relies on express consent given by a holder of a telephone number that is later reassigned. The Morgan court acknowledged that in ACA International the D.C. Circuit had, indeed, set aside the FCC’s “one-call safe harbor” as arbitrary and capricious, but it noted that the D.C. Circuit had expressed no opinion as to “whether the FCC’s reasonable reliance approach was proper” and had “held that the one-call safe harbor approach taken in the [FCC’s] 2015 declaratory ruling failed to implement a reasonable reliance approach.”  More broadly, the Morgan court found that the D.C. Circuit had set aside not just the one-call safe harbor but the FCC’s treatment of reassigned numbers as a whole. Accordingly, the Morgan court concluded that ACA International had not established either a reasonable reliance test or an exception for callers who reached reassigned numbers, and, therefore, the defendants’ reliance on the previous subscriber’s consent could not be deemed reasonable under the TCPA and the FCC’s body of regulatory law that survived ACA International.  

Happily, however, the Morgan court concurred with the defendants’ argument that their calls to the plaintiff were not made using an ATDS as defined in the TCPA. The court noted there was no dispute that the equipment the defendants had used to call the plaintiff’s number did not randomly or sequentially generate the numbers to be called but, rather, dialed numbers from a predetermined list. Despite the plaintiff’s argument that prior FCC interpretations of the TCPA had included such a system in the definition of an ATDS, the court stated that it agreed with the majority of courts in the Middle District of Florida that ACA International had invalidated those agency interpretations. On that basis, the Morgan court concluded that it was not bound by the FCC’s prior declaratory rulings as to whether the system at issue constituted an ATDS under the statute.

Importantly, the court grounded its opinion on this issue in the TCPA’s definition of an ATDS: “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” The court rejected the plaintiff’s argument that the clause “using a random or sequential number generator” modified the term “produce” but not the word “store” and held that the plain language of the statute required that a dialer “have the present ability to randomly or sequentially generate telephone numbers to be an ATDS within the meaning of the TCPA.”

Accordingly, the court concluded that the system at issue could not be deemed to be an ATDS as defined by the statute and, for that reason, the court granted the defendants’ motions for summary judgment on the plaintiff’s claims that were premised on the use of an ATDS.

In response to the decision, Chris Brewer, vice president of compliance for North American Credit Services, an ACA International member company based in Tennessee, said:

“Medical Services Inc. and North American Credit Services Inc. are pleased with the court’s order and are happy that Judge [Wendy] Berger followed the correct trend of applying the plain language of the statute to determine the definition of ATDS. The Middle District of Florida’s court order in Morgan v. Adventist Health System/Sunbelt, Inc., et al., Case No. 6:1-cv-1342-Orl-78DCI (M.D. Flo. Jan. 13, 2020) to grant the defendants’ summary judgment motions of the plaintiff’s claims based on the use of an ATDS is a significant and impactful win in our industry. We also appreciate that Judge Berger denied the class action status for plaintiff’s claims. This is the correct decision as the issue of revocation of consent is always an individualized determination and could not be litigated as a class action.”


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

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