Decision deepens a circuit split and a reasonable interpretation of the TCPA. Editor’s note: This content is available for members-only.
By Michael C. Barnhill
Michael Best & Friedrich LLP
The U.S. Court of Appeals for the 11th Circuit recent opinion in Glasser v. Hilton Grand Vacations Co., LLC is an excellent example of how to interpret a statute, and it presents ACA International members and their lawyers a roadmap when advocating for a common-sense interpretation of the Telephone Consumer Protection Act.
At issue in Glasser was whether the companies’ dialing equipment qualified as an auto-dialer under the TCPA. As we saw with the 9th Circuit’s decision in Marks v. Crunch San Diego, LLC, a significant question is whether the phrase “using a random or sequential number generator” modifies both verbs (“store” and “produce”) or just “produce.” The 9th Circuit concluded that the latter interpretation was correct, but fortunately, the 11th Circuit disagreed.
The court started with “conventional rules of grammar and punctuation.” It said, “When two conjoined verbs (“to store or produce”) share a direct object (“telephone numbers to be called”), a modifier following that object (“using a random or sequential number generator”) customarily modifies both verbs.
(Does that take any one back to diagramming sentences in school?)
Plaintiff’s attorneys usually find fault with this interpretation by arguing that it does not make sense to store numbers using a number generator. But the court pointed out that it is difficult to think of dialing equipment that can produce numbers and dial them but not store them. Storage must occur, and in that way, a device stores telephone numbers using a number generator.
The 11th Circuit also made the interesting observation that the Federal Communications Commission’s declaratory orders in 1992 and 1995 both recognized that the TCPA only covered calls directed to randomly or sequentially generated phone numbers. It was not until 2003 that the FCC started to expand the definition of “auto-dialer” and started the litigation trends we see today. This supported the 11th Circuit’s view that the proper reading of the statute is that an auto-dialer must use a random or sequential number generator.
At the end of the day, the 11th Circuit disagreed with the 9th Circuit and held that an auto-dialer must use random or sequentially generated numbers. Prior to this decision, the 11th Circuit, and Florida in particular, has been a hotbed of TCPA litigation because of the consumer-friendly decisions reached by the courts in that circuit. This decision should help cool that relatively quickly, though. Plaintiff’s attorneys have long relied on the FCC’s declaratory orders from the 2000s and 2010s to make callers liable for every call they could. This new interpretation should guide district courts to more reasonable positions, making it more difficult for Plaintiff’s attorneys to bring TCPA suits.
This decision also deepens a circuit split with the 9th Circuit’s Marks decision on one hand and the 11th Circuit joining with the 3rd Circuit in backing a reasonable interpretation of the TCPA. It remains to be seen what the plaintiffs in Glasser will do next, so both sides will have to wait and see what happens as this case continues to wind its way through the courts. Moreover, multiple parties are briefing an appeal before the 2nd Circuit in Jimenez v. Credit One Bank, N.A. A favorable ruling for the industry would make the reasonable interpretation upheld by the 11th Circuit the clear majority rule, and it would demand the attention of the U.S. Supreme Court. Of course, the FCC’s long-awaited post-ACA International decision could come at any time as well.
The ACA members who worked on the briefing for this case should be congratulated for their hard work. Those of us defending TCPA cases in the 11th Circuit are now better equipped to successfully defend against the Plaintiff’s bar’s abusive TCPA tactics.
The following article was contributed by a member of ACA International’s Member Attorney Program (MAP) committee. ACA Daily will publish future legal analyses and thought pieces written by members of this important committee.