Petition for Writ of Certiorari — Ali Gadelhak, Petitioner v. AT&T Services, Inc.
Supreme Court briefAug 17, 2020
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No. 20-__
IN THE SUPREME COURT OF THE UNITED STATES
_______________
ALI GADELHAK,
PETITIONER
V.
AT&T SERVICES, INC.,
RESPONDENT
______________
On Petition for Writ of Certiorari
to the United States Court of Appeals for the Seventh Circuit
___________
PETITION FOR A WRIT OF CERTIORARI
__________
KEITH J. KEOGH
Counsel of Record
TIMOTHY J. SOSTRIN
KEOGH LAW, LTD.
55 W. Monroe St., Ste. 3390
Chicago, IL 60603
312-726-1092
keith@keoghlaw.com
Counsel for Petitioner
August 17, 2020
QUESTION PRESENTED
The Telephone Consumer Protection Act of 1991 (“TCPA”), Pub. L. No. 102243, 105 Stat. 2394, prohibits use of an “automatic telephone dialing system”
(“ATDS”) to initiate voice calls and text messages to certain phone numbers,
including numbers assigned to cellular telephone service, without the prior express
consent of the called party. 47 U.S.C. § 227(b)(1)(A).
Petitioner sued Respondent for violating this provision after Respondent’s
computer program sent him automated text messages asking him, in a language he
did not understand, to participate in a survey. The district court entered judgment
for the Respondent on the grounds that the dialing system used to send the
messages does not qualify as an ATDS, and the Seventh Circuit affirmed.
The TCPA defines ATDS as “equipment which has the capacity— (A) to store
or produce telephone numbers to be called, using a random or sequential number
generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).
The question presented is whether this definition encompasses only systems
that autodial telephone numbers generated using a random or sequential number
generator, or whether those restrictions also apply to systems that autodial
telephone numbers stored in a list, like the system used by Respondent in this case.
The Court recently granted a petition for a writ of certiorari to consider the
same question in Facebook, Inc. v. Duguid, No. 19-511, 2020 U.S. Lexis 3559 (July
9, 2020).
PARTIES TO THE PROCEEDINGS
Ali Gadelhak is Petitioner here and was Plaintiff-Appellant below.
AT&T Services, Inc. is Respondent here and was Defendant-Appellee below.
ii
STATEMENT OF RELATED PROCEEDINGS
Gadelhak v. AT&T Services, Inc., No. 19-1738 (7th Cir.) (opinion issued and
judgment entered February 19, 2020; petition for rehearing denied March 19, 2020;
mandate issued March 27, 2020).
Gadelhak v. AT&T Services, Inc., No. 1:17-cv-01559 (N.D. Ill.) (memorandum
opinion and order granting motion for summary judgment and final judgment
entered March 29, 2019).
There are no additional proceedings in any court that are directly related to
this case.
iii
TABLE OF CONTENTS
Opinions and Orders Entered Below ............................................................................ 1
Jurisdictional Statement ............................................................................................... 2
Statutory Provisions Involved ....................................................................................... 3
Statement of the Case ................................................................................................... 4
A. Congressional Concerns about “Database Telemarketing” Resulted in Passage
of The Telephone Consumer Protection Act .............................................................. 6
B. Factual Background and Proceedings Below.................................................... 10
Reasons for Granting Review ...................................................................................... 13
A. The Circuit Court’s Interpretation of ATDS Violates Cardinal Principles of
Statutory Interpretation .......................................................................................... 14
B. The Circuit Court’s Speculative Concerns about the Statute’s Application to
Smartphones are Unfounded ................................................................................... 26
C. The Circuit Court’s Interpretation Allows Telemarketers to Easily
Circumvent the Statute............................................................................................ 30
D. The Court should Grant Certiorari to Resolve the Circuit Split ..................... 31
Conclusion .................................................................................................................... 32
Appendix A – Opinion Of The United States Court Of Appeals For The Seventh
Circuit, Filed February 19, 2020
Appendix B – Memorandum Opinion And Order Of The United States District
Court For The Northern District Of Illinois, Eastern Division, Filed March 29, 2019
Appendix C – Denial Of Rehearing Of The United States Court Of Appeals for the
Seventh Circuit, Filed March 19, 2020
iv
TABLE OF AUTHORITIES
Cases
ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) ......................................... 12
Allan v. Pa. Higher Educ. Assistance Agency
2020 U.S. App. Lexis 23935 (6th Cir. July 29, 2020) ...................................... passim
Allen v. Wright, 468 U.S. 737 (1984) ........................................................................... 27
Bailey v. United States, 516 U.S. 137 (1995) .............................................................. 17
Barr v. Am. Ass'n of Political Consultants, Inc., 140 S. Ct. 2335 (2020) ................... 24
Bilski v. Kappos, 561 U.S. 593 (2010) ......................................................................... 17
Blow v. Bijora, 855 F.3d 793 (7th Cir. 2017) .............................................................. 11
Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164 (1994) ....................... 25
Coleman v. Tollefson, 135 S. Ct. 1759 (2015) ....................................................... 13, 28
Dominguez v. Yahoo, Inc., 894 F.3d 116 (3rd Cir. 2018) ........................................ 4, 15
Duran v. La Boom Disco, Inc., 955 F.3d 279 (2nd Cir. 2020)..................... 4, 14, 15, 16
Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020) ..................................... 4
Glasser v. Hilton Grand Vacations Co., LLC
948 F.3d 1301 (11th Cir. 2020) ...................................................................... 4, 19, 28
Jordan v. Maxim Healthcare Servs., 950 F.3d 724 (10th Cir. 2020) ......................... 22
Krakauer v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019) ................................ 6
Lawson v. FMR LLC, 571 U.S. 429 (2014) ........................................................... 13, 29
Leocal v. Ashcroft, 543 U.S. 1 (2004) ..................................................................... 13, 16
Lockhart v. United States, 136 S. Ct. 958 (2016) ............................................ 13, 22, 27
Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 110 (11th Cir. 2014) ........ 11, 24
Market Co. v. Hoffman, 101 U.S. 112 (1879) .............................................................. 16
Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) ...................... passim
Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) ........... 11, 24
New Prime Inc. v. Oliveira, 139 S.Ct. 532 (2019) ....................................................... 27
Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927 (N.D. Ill. 2018) ..................... 15
Ransom v. FIA Card Servs., 562 U.S. 61 (2011) ................................................... 13, 16
Regan v. Time, Inc., 468 U.S. 641 (1984) .................................................................... 28
Tex. Dep’t of Hous. & Cmty. Affairs. v. Inclusive Cmtys Project, Inc.
135 S. Ct. 2507 (2015) .............................................................................................. 25
United States v. All Funds on Deposit with R.J. O’Brien & Assocs.
783 F.3d 607 (7th Cir. April 2, 2015) ....................................................................... 27
United States v. National Dairy Products Corp., 372 U.S. 29 (1963) ........................ 28
Williams v. Taylor, 529 U.S. 362 (2000) ..................................................................... 16
Statutes
28 U.S.C § 1331 ............................................................................................................ 11
47 U.S.C. § 227(a)(1) ............................................................................................ passim
v
47 U.S.C. § 227(b)(1) ............................................................................................ 3, 9, 30
47 U.S.C. § 227(b)(2) .................................................................................................... 10
47 U.S.C. § 227(b)(3) ................................................................................................ 5, 10
Other Authorities
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS (2012) ....................................................................................................... 20, 21
Bills to Amend the Communications Act of 1934: Hearing before the Subcomm. On
Telecommc’ns and Fin. Of the House Comm. On Energy and Commerce, 102 Cong.
9, 2 (1991) (statement of Rep. Markey) ............................................................... 8, 19
Illegal Robocalls: Calling all to Stop the Scourge: Hearing before the Subcommittee
On Communications, Technology, Innovation, and the Internet, of the Committee
on Commerce, Science, and Transportation, 116th Cong. (Apr. 11, 2019) ............... 5
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18
FCC Rcd. 14014 (2003) ............................................................................. 6, 11, 14, 24
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23
FCC Rcd. 559 (2008) ................................................................................................. 11
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30
FCC Rcd. 7961 (2015) ............................................................................................... 11
Sup. Ct. R. 10(a) ........................................................................................................... 14
SUP. CT. R. 10(c) ........................................................................................................... 13
The Automated Telephone Consumer Protection Act of 1991: Hearing on S. 1462
before the Sen. Subcomm. on Commc’ns of the Comm. on Commerce, Sci., and
Transp., 102nd Cong. 16 (1991) ....................................................................... passim
The Automated Telephone Consumer Protection Act of 1991: Hearing on S. 1462
before the Sen. Subcomm. on Commc’ns of the Comm. on Commerce, Sci., and
Transp., 102nd Cong. 27 (July 24, 1991) ............................................................. 7, 18
Tim Harper, Why Robocalls are Even Worse Than You Thought, CONSUMER
REPORTS, May 15, 2019, available at
https://www.consumerreports.org/robocalls/why-robocalls-are-even-worse-thanyou-thought// ............................................................................................................... 5
vi
OPINIONS AND ORDERS ENTERED BELOW
The Seventh Circuit’s opinion is reported at 950 F.3d 458 and reproduced at
App. A, and its order denying Petitioner’s petition for rehearing en banc is
unreported but available at 2020 U.S. App. LEXIS 8774 and reproduced at App. C.
The district court’s memorandum opinion and order granting Respondent’s
motion for summary judgment is unreported but available at 2019 U.S. Dist. LEXIS
55200 and reproduced at App. B.
1
JURISDICTIONAL STATEMENT
The Seventh Circuit issued its opinion on February 19, 2020. Petitioner filed
a petition for rehearing en banc on March 4, 2020 and the Seventh Circuit denied
the petition on March 19, 2020. This Court entered a COVID-19 related order on
March 19, 2020, which extended the deadline to file any petition for a writ of
certiorari due on or after that date by 150 days from the date of an order denying a
timely petition for rehearing.
This Court has jurisdiction under 28 U.S.C. §1254(1).
2
STATUTORY PROVISIONS INVOLVED
“The term ‘automatic telephone dialing system’ means equipment
which has the capacity – (A) to store or produce telephone numbers to
be called, using a random or sequential number generator; and (B) to
dial such numbers.” 47 U.S.C. § 227(a)(1).
“It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United
States—
(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial or
prerecorded voice—
(i) to any emergency telephone line (including any “911” line and
any emergency line of a hospital, medical physician or service
office, health care facility, poison control center, or fire
protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient room of a
hospital, health care facility, elderly home, or similar
establishment; or
(iii) to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service, or
other radio common carrier service, or any service for which the
called party is charged for the call, unless such call is made
solely to collect a debt owed to or guaranteed by the United
States[.]” 47 U.S.C. § 227(b)(1).
3
STATEMENT OF THE CASE
The federal courts of appeals are split on how to interpret a foundational
provision of the Telephone Consumer Protection Act (TCPA) regulating automated
voice calls and text messages to cellular telephone numbers. 47 U.S.C. § 227(a)(1).
By current count, three circuit courts have interpreted the Act’s definition of
“automatic telephone dialing system” (ATDS) to cover systems that automatically
dial telephone numbers stored in a database or list. See Allan v. Pa. Higher Educ.
Assistance Agency, 2020 U.S. App. Lexis 23935 (6th Cir. July 29, 2020); Duran v. La
Boom Disco, Inc., 955 F.3d 279 (2nd Cir. 2020); Marks v. Crunch San Diego, LLC,
904 F.3d 1041 (9th Cir. 2018). Such list-based autodialers were commonly used by
telemarketers in 1991 when Congress enacted the TCPA. See The Automated
Telephone Consumer Protection Act of 1991: Hearing on S. 1462 before the Sen.
Subcomm. on Commc’ns of the Comm. on Commerce, Sci., and Transp., 102nd Cong.
16 (1991) (testimony of Robert S. Bulmash that thirty to forty percent of
telemarketers had already upgraded their list-based dialers to include highly
advanced predictive dialing capabilities).
On the other hand, three other circuit courts have recently held the ATDS
definition was never intended to apply to list-based dialers and instead applies only
to those systems that dial arbitrary phone numbers by generating random or
sequential numbers out of thin air. Gadelhak v. AT&T Servs., Inc., 950 F.3d 458
(7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301 (11th
Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116 (3rd Cir. 2018).
4
This is a question of exceptional importance. Robocalls are not only a
nuisance to those that receive them, they are threatening the viability of the
telephone as a useful means of communication for businesses and emergency care
centers such as hospitals. As Senator Brian Schatz has noted, “robocalls have
turned us into a nation of call screeners,” which presents a “significant economic
issue.” Illegal Robocalls: Calling all to Stop the Scourge: Hearing before the
Subcommittee On Communications, Technology, Innovation, and the Internet, of the
Committee on Commerce, Science, and Transportation, 116th Cong. (Apr. 11, 2019).
Many people now refuse to answer calls from numbers they do not recognize, which
can lead to harmful results. See e.g., Tim Harper, Why Robocalls are Even Worse
Than You Thought, CONSUMER REPORTS, May 15, 2019, available at
https://www.consumerreports.org/robocalls/why-robocalls-are-even-worse-than-youthought// (reporting delays in medical treatment because people no longer respond
to calls from medical specialists).
Congress recognized the implications of unregulated robocalls even in 1991
and accordingly banned unsolicited autodialed calls to cellular telephone numbers
and other specialized telephone lines. 47 U.S.C. § 227(b)(3); see also S. REP. NO. 102178, at 5 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1972–1973 (“The Committee
believes that Federal legislation is necessary to protect the public from automated
telephone calls. These calls can be an invasion of privacy, an impediment to
interstate commerce, and a disruption to essential public safety services.”).
When the popularity of cellular telephones took off in the early 2000s, the
5
Federal Communications Commission sought comment on the scope of the ATDS
definition and issued an order confirming list-based autodialers qualify as ATDSs
under the Act. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act
of 1991, 18 FCC Rcd. 14014, 14091-93 ¶¶131-33 (2003) (“2003 Order”).
Telemarketers have thus operated under the belief that list-based autodialers
are covered by the Act. The ruling below threatens to reverse decades of precedent
and gives a green light to telemarketers who will suddenly be free to initiate billions
of automated voice calls and text messages to a public that is already fed up with
these calls. One would be hard pressed to find a single telemarketer that uses a
system to just randomly dial numbers. Generating arbitrary phone numbers simply
makes no sense in a data driven economy where computers can easily and cheaply
store massive amounts of data, and bulk consumer data is available to virtually
anyone who wants it. Thus, a ruling exempting list based dialing systems from the
TCPA would eviscerate the TCPA.
A. Congressional Concerns about “Database Telemarketing” Resulted
in Passage of The Telephone Consumer Protection Act
“The TCPA was enacted to solve a problem. Simply put, people felt almost
helpless in the face of repeated and unwanted telemarketing calls.” Krakauer v.
Dish Network, L.L.C., 925 F.3d 643, 663 (4th Cir. 2019). As the Committee on
Energy and Commerce reported at the time, new and “sophisticated, computer
driven telemarketing tools have caused the frequency and number of unsolicited
telemarketing calls [to] increase markedly.” H.R. Rep. No. 102-317, at 6 (1991).
“[T]he entire sales to service marketing function has been automated. Modern
6
telemarketing software organizes information on current and prospective clients
into databases designed to support businesses in every aspect of telephone sales[.]”
Id. at 7. “Hundreds of companies” had begun developing and selling computer
database telemarketing applications. Ibid. Other companies had begun to sell
instructional videos on how to engage in “Database Marketing.” Id. at 8.
Congress was aware a burgeoning market for consumer contact information
also made it easier than ever for telemarketers to fill their databases with phone
numbers to call. Id. at 7 (“Businesses routinely purchase data from multiple sources
in an effort to create unique product or service specific databases.”); see also The
Automated Telephone Consumer Protection Act of 1991: Hearing on S. 1462 before
the Sen. Subcomm. on Commc’ns of the Comm. on Commerce, Sci., and Transp.,
102nd Cong. 27 (July 24, 1991) (“There are list brokers out there whose business it
is to sell phone numbers, names, and so on and so forth, to the telemarketing
industry[.]”) (Stmt. Of Robert S. Bulmash).
These advances in database telemarketing had resulted in an explosion of
telemarketing calls. As representative Markey put it: “The reason for the
proliferation of such unsolicited advertising over our Nation’s telecommunications
network is that companies can now target their marketing . . . corporate America
has your number.” Bills to Amend the Communications Act of 1934 to Regulate the
Use of Telephones in Making Commercial Solicitations and to Protect the Privacy
Rights of Subscribers: Hearing on H.R. 1304 and H.R. 1305 before the Subcomm. on
7
Telecomm. and Fin. of the House Comm. on Energy and Commerce, 102nd Cong. 2
(1991) (statement of Rep. Markey).
A growing number of telemarketers had also begun to pair their databases
with automatic dialing technology “to increase their number of customer contacts.”
H.R. REP. NO. 102-317, at 10 (1991). The testimony before Congress indicated that,
even in 1991, thirty to forty percent of telemarketers were already using highly
advanced “Predictive Dialers,” which not only dialed numbers from a database
automatically, but dialed them at an algorithmically determined rate to maximize
the number of successful connections. See The Automated Telephone Consumer
Protection Act of 1991: Hearing on S. 1462 before the Sen. Subcomm. on Commc’ns
of the Comm. on Commerce, Sci., and Transp., 102nd Cong. 16 (testimony of Robert
S. Bulmash). Thus, the percentage of telemarketers using list-based dialing
systems in 1991 was significantly more than thirty to forty percent.
Congress was concerned that autodialers were exacerbating the growing
problem of unsolicited calls, as they were being used to make “millions of calls every
day” and “each system has the capacity to automatically dial as many as 1,000
phones per day.” H.R. REP. NO. 102-317, at 10 (1991). Congress found autodialers to
be particularly problematic when used to call cellular telephone numbers, because
they “impose a cost on the called party . . . cellular users must pay for each
incoming call.” S. REP. NO. 102-178, at 2 (1991).
Moreover, consumers were complaining that autodialers made the nuisance
and invasion of privacy of unsolicited calls even worse. “[T]he automated calls will
8
not disconnect the line for a long time after called party hangs up the phone,
preventing the called party from placing his or her own calls” and “they do not
respond to human voice commands.” S. REP. NO. 102-178, at 2 (1991).
“Some automatic dialers” were even being programmed to generate and dial
sequential blocks of telephone numbers, “thereby tying up all the lines of a business
and preventing any outgoing calls.” Ibid (emphasis added). Others were
programming their dialers to call random telephone numbers, which resulted in
calls to unlisted phone numbers and, sometimes, emergency telephone lines. Ibid.
(“Having an unlisted number does not prevent those telemarketers that call
numbers randomly or sequentially.”)
Congress acted by banning the use of an automatic telephone dialing system
(ATDS) to place calls to cellular telephone numbers and other specialized telephone
lines, unless such calls were “made for emergency purposes” or “made with the prior
express consent of the called party.” 47 U.S.C. § 227(b)(1)(A). In order to ensure
that all autodialers were covered by the statute, Congress defined ATDS to
encompass both systems that dial telephone numbers stored in a list or database
(the “store” prong) and systems that dial arbitrary numbers produced by a random
or sequential number generator (the “produce” prong). See 47 U.S.C. § 227(a)(1)
(ATDS “means equipment which has the capacity—(A) to store or produce telephone
numbers to be called, using a random or sequential number generator; and (B) to
dial such numbers.”) (emphasis added). By including the store prong, Congress
ensured it did not exclude the list based dialing systems that it was concerned
9
about, and which at least thirty to forty percent of telemarketers were using when
the TCPA was enacted.
To ensure that these restrictions are enforced, the Act authorizes the Federal
Communications Commission to prescribe additional regulations implementing its
provisions, 47 U.S.C. § 227(b)(2), and authorizes a private right of action for
statutory damages to any person who receives a call made in violation of the statute
or the FCC’s regulations. 47 U.S.C. § 227(b)(3).
B. Factual Background and Proceedings Below
Petitioner initiated this action after receiving several automated and
unsolicited text messages from Respondent asking him in Spanish, which he did not
understand, to participate in a survey. App. A at 2. These text messages were sent
by a computer program, known as the AT&T Customer Rules Feedback Tool, or
TACRFT. App. B at 2. Respondent’s Market Research Organization created
TACRFT to send automated text message surveys, and advertisements for
Respondent’s smartphone app, to cellular telephone numbers stored in the account
records of its affiliate companies. Ibid. It is undisputed that this computer
program, rather than any human being, both creates the list of cellular telephone
numbers that will be called, and automatically sends pre-programmed text
messages to the telephone numbers stored in that list. App. B at 2-3.
Petitioner is not a customer of Respondent or any of its affiliates and his
number is on the Nation Do Not Call list. App. B at 3. Respondent’s computer
program nevertheless sent him five automated text messages because his cellular
10
telephone number somehow came to be stored in the account records of one of
Respondent’s affiliates. Ibid.
In February 2017, Petitioner filed a civil complaint against Respondent in the
United States District Court for the Northern District of Illinois, alleging that
Respondent’s text messages violated the TCPA. Ibid. The district court had had
federal question jurisdiction pursuant to 28 U.S.C § 1331.
At the time that Plaintiff filed his complaint, the TCPA’s application to listbased dialing systems like Respondent’s TACRFT system was well established. The
Federal Communications Commission had repeatedly confirmed that list-based
dialing systems, like Respondent’s TACRFT system, qualified as ATDSs under the
statute. See 2003 Order, 18 FCC Rcd. at 14091-93 ¶¶131-33 (“The statutory
definition contemplates autodialing equipment that either stores or produces
number”); In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 23 FCC Rcd. 559, 566-67 ¶¶ 12-14 (2008) (2008 Order); In re Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961,
7971-73 ¶¶ 10-14 (2015) (2015 Order).
Moreover, circuit courts across the country had also confirmed the TCPA’s
application to list-based autodialers, citing the FCC’s orders. See Blow v. Bijora, 855
F.3d 793, 800-802 (7th Cir. 2017); Mais v. Gulf Coast Collection Bureau, Inc., 768
F.3d 1110, 1114 (11th Cir. 2014); Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d
1036, 1043 (9th Cir. 2012).
11
On March 16, 2018, the D.C. Circuit issued an opinion in ACA International
v. FCC, 885 F.3d 687 (D.C. Cir. 2018), which vacated the FCC’s 2015 Order because
it contained confusing and seemingly contradictory statements about the FCC’s
interpretation of the ATDS definition. Id. at 701 (“the Commission’s ruling appears
to be of two minds on the issue.”); Id. at 703 (“It might be permissible for the
Commission to adopt either interpretation. But the Commission cannot, consistent
with reasoned decisionmaking, espouse both competing interpretations in the same
order.”)
Misreading ACA International to invalidate all of the FCC’s prior orders
concerning list-based dialing systems, Respondent filed a motion for summary
judgment in the district court, contending that its TACRFT system is not an ATDS.
App. B. at 1. Respondent argued the TCPA was never intended to apply to listbased autodialers and the statutory definition of ATDS was strictly limited to only
those systems that generate arbitrary telephone numbers out of thin air by using a
random or sequential number generator. App. B. at 11. Respondent argued further
the Seventh Circuit’s decision in Blow was no longer good law because the FCC
orders on which it relied had been vacated. App. B. at 8. The district court agreed
with Respondent on both points and entered judgment for Respondent. App. B. at
17. On appeal, the Seventh Circuit affirmed. It ruled that the TCPA does not apply
to systems that autodial telephone numbers stored in a “customer database” and
instead applies only to those systems that “generate random or sequential numbers”
for dialing. App. A. at 2; id. at 19-20.
12
REASONS FOR GRANTING REVIEW
The Court should grant certiorari for two reasons. First, the circuit court
“decided an important federal question in a way that conflicts with relevant
decisions of this Court.” SUP. CT. R. 10(c). The circuit court’s interpretation of the
ATDS definition renders superfluous the very language on which Petitioner seeks to
rely – the words “store or.” App. A at 11-12. The court acknowledged that its
interpretation renders those words superfluous, but rejects a competing
interpretation that resolves the superfluity because the court believed that the
grammar would be too awkward. App A. at 14-15. That decision conflicts with
Lockhart v. United States, 136 S. Ct. 958 (2016) and similar decisions, which
establish that the rule against superfluity should supersede any concerns about the
strict application of grammatical rules. Id. at 965-66; see also Ransom v. FIA Card
Servs., 562 U.S. 61, 70 (2011) (“We must give effect to every word of a statute
wherever possible.”), quoting Leocal v. Ashcroft, 543 U.S. 1, 12 (2004).
The circuit court further departed from this Court’s precedent by allowing
purely hypothetical and speculative concerns about the statute’s potential
application to calls placed by smartphones to guide its interpretation of the
statutory text. App. A. at 16. This Court has repeatedly held that such hypothetical
concerns cannot control the decision about what a law actually provides. See e.g.,
Coleman v. Tollefson, 135 S. Ct. 1759, 1765 (2015) (“If and when the situation that
Coleman hypothesizes does arise, the courts can consider the problem in context.”);
Lawson v. FMR LLC, 571 U.S. 429, 453 (2014) (“it would thwart Congress’
13
dominant aim if contractors were taken off the hook for retaliating against their
whistleblowing employees, just to avoid the unlikely prospect that babysitters,
nannies, gardeners, and the like will flood OSHA with §1514A complaints.”)
Second, the Court should grant certiorari because “a United States court of
appeals has entered a decision in conflict with the decision of another United States
court of appeals on the same important matter.” Sup. Ct. R. 10(a). The circuit
court’s decision conflicts with decisions in the Second Circuit, Sixth Circuit, and
Ninth Circuit, all of which interpret the ATDS definition to encompass list-based
autodialers like the one Respondent used in this case. Duran, 955 F.3d at 287;
Allan, 2020 U.S. App. Lexis 23935 at 28; Marks, 904 F.3d at 1052. The Court
should grant certiorari to resolve this circuit split and bring uniformity to the law.
A. The Circuit Court’s Interpretation of ATDS Violates Cardinal
Principles of Statutory Interpretation
1. The TCPA defines ATDS as “equipment which has the capacity— (A) to
store or produce telephone numbers to be called, using a random or sequential
number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The
definition is written in the disjunctive – its plain language encompasses systems
that automatically dial telephone numbers after either storing those telephone
numbers to be called (the store prong) or producing those telephone numbers to be
called using a random or sequential number generator (the produce prong). That is
why the FCC confirmed in 2003 that list-based dialing systems qualified as ATDS
regardless of whether they could produce telephone numbers using a random or
sequential number generator. 2003 Order, 18 FCC Rcd. at 14092, ¶ 132 (“the
14
statutory definition contemplates autodialing equipment that either stores or
produces numbers”) (emphasis added).
Under this interpretation, the clause “using a random or sequential number
generator” modifies only the verb “produce;” it does not reach back to also modify
the verb “store.” “This means the numbers to be called by an ATDS may be ‘stored’
or they may be ‘produced,’ but only if they are produced must they come from ‘a
random or sequential number generator.’” Duran, 955 F.3d at 283-84. By this
reading, the ATDS definition is not limited to devices with the capacity to generate
random or sequential telephone numbers, but “also includes devices with the
capacity to dial stored numbers automatically.” Marks, 904 F.3d at 1052.
This reading is supported by two semantic considerations. First, the clause
“using a random or sequential number generator” cannot naturally be read to
modify the verb “store” because it makes no sense to store telephone numbers using
a random or sequential number generator. Storage and generation are functionally
distinct processes. And while number generators can obviously be used to “produce”
telephone numbers, “it is hard to see how a number generator could be used to
‘store’ telephone numbers.” App. A. at 11, quoting Pinkus v. Sirius XM Radio, Inc.,
319 F. Supp. 3d 927, 938 (N.D. Ill. 2018); see also Marks, 904 F.3d at 1052, n. 8 (“it
is unclear how a number can be stored (as opposed to produced) using ‘a random or
sequential number generator.”) (quoting Dominguez v. Yahoo, Inc., 629 F. App'x
369, 372 n.1 (3d Cir. 2015). “Because a number generator produces numbers, the
more natural reading is that ‘using a random or sequential number generator’ solely
15
modifies ‘produce.’” Allan, 2020 U.S. App. LEXIS 23935 at * 9.
Second, if the phrase were instead read to modify both “store” and “produce,”
which is the circuit court’s interpretation, then the word “store” suddenly becomes
superfluous. To see why, ask what does a random or sequential number generator
do? It produces numbers. Ibid. Accordingly, whenever a dialing system utilizes a
random or sequential number generator, it has produced numbers using a random
or sequential number generator, and the produce prong is satisfied. Always. See
Duran, 955 F.3d at 284 (“Common sense suggests that any number that is stored
using a number-generator is also produced by the same number-generator[.]”)
There is nothing left for the words “store or” to do.
In other words, there is no reason to put the words “store or” in the definition
of ATDS if it only applies to systems that use random or sequential number
generators. Even if the system somehow could also store numbers using the
random or sequential number generator, it would not matter because the ATDS
definition would already be satisfied. See Allan, 2020 U.S. App. LEXIS 23935 at *10
(its storage function would be “incidental to its production function”).
2. This Court has repeatedly held that courts “must give effect to every word
of a statute wherever possible.” Ransom, 562 U.S. at 70, quoting Leocal, 543 U.S. at
12. This is the “cardinal principle of statutory construction” (Williams v. Taylor,
529 U.S. 362, 404 (2000)), which has guided courts for hundreds of years. See
Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879) (“As early as in Bacon's
Abridgment, sect. 2, it was said that 'a statute ought, upon the whole, to be so
16
construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’ This rule has been repeated innumerable
times.”)
The circuit court was therefore bound to “assume that Congress used two
terms [“‘store’ or ‘produce’”] because it intended each term to have a particular,
nonsuperfluous meaning.” Bailey v. United States, 516 U.S. 137, 146 (1995)
(rejecting interpretation that “undermines virtually any function” for a statutory
term in favor of an interpretation that “preserves a meaningful role” for that term.)
The circuit court admitted its interpretation of ATDS does indeed render the
“store” term superfluous, but concluded it “is not a deal breaker” because “it is
plausible that Congress chose some redundancy” in some sort of “ill-conceived . . .
belt-and-suspenders approach.” App A. at 12. (citations omitted). The problem with
this speculation is two-fold. First, the rule against superfluity “cannot be overcome
by judicial speculation as to the subjective intent of various legislators[.]” Bilski v.
Kappos, 561 U.S. 593, 608 (2010). Second, the circuit court’s speculation is, in fact,
disproven by the legislative history, which shows clearly why Congress chose to
include the words “store or”.
Congress was concerned a burgeoning market for the sale of consumer
contact information, and increased use of sophisticated computer databases by
telemarketers, was resulting in an explosion of unsolicited telemarketing calls. In
its report on the House version of the bill that would become the TCPA, the
Committee on Energy and Commerce found telephone solicitations were increasing
17
at an unprecedented rate due to the growth of “Database Marketing.” H.R. REP. NO.
102-317, at 7 (1991) (“Modern telemarketing software organizes information on
current and prospective clients into databases designed to support businesses in
every aspect of telephone sales[.]”) The committee found that “hundreds of
companies” had begun developing and selling computer database applications for
telemarketers, while others had begun to sell instructional videos on how to engage
in “Database Marketing.” Id. at 7-8. It found further that telemarketers routinely
purchased demographic and psychographic data (including names, addresses, and
telephone numbers) from multiple sources in order to build their telemarketing
databases. Ibid.
In a hearing on the Senate’s version of the bill, the Committee on Commerce,
Science, and Transportation, similarly heard testimony about “list brokers . . .
whose business it is to sell phone numbers, names, and so on and so forth, to the
telemarketing industry[.]” The Automated Telephone Consumer Protection Act of
1991: Hearing on S. 1462 before the Sen. Subcomm. on Commc’ns of the Comm. on
Commerce, Sci., and Transp., 102nd Cong. 27 (July 24, 1991) (Stmt. Of Robert S.
Bulmash). According to the same testimony, thirty to forty percent of telemarketers
were already using highly advanced “Predictive Dialers” to automatically dial the
telephone numbers from lists they were purchasing. Id. at 16. Given that
predictive dialers evolved from standard list-based dialing systems, the percentage
of telemarketers using list-based autodialers in 1991 is far more than thirty to forty
percent.
18
Then, representative Markey put it plain terms: “The reason for the
proliferation of such unsolicited advertising over our Nation’s telecommunications
network is that companies can now target their marketing . . . corporate America
has your number.” Bills to Amend the Communications Act of 1934 to Regulate the
Use of Telephones in Making Commercial Solicitations and to Protect the Privacy
Rights of Subscribers: Hearing on H.R. 1304 and H.R. 1305 before the Subcomm. on
Telecomm. and Fin. of the House Comm. on Energy and Commerce, 102nd Cong. 2
(1991) (statement of Rep. Markey).
Thus, the circuit court’s reading of “store” as being superfluous is
contradicted by the legislative history, which shows that the word has an obvious
purpose: to cover the list-based dialing systems that were commonly used by
telemarketers even in 1991 and which Congress believed were contributing to the
increase in unsolicited telemarketing calls.
3. The circuit court acknowledged Petitioner’s interpretation of ATDS, under
which list-based dialing systems are covered by the statute, would resolve the
superfluity problem by giving meaning to the word “store.” App. A. at 14. But it
rejected that interpretation as “ungrammatical.” App. A. at 16. Specifically, the
circuit court held that “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.”
App. A. at 10, quoting Glasser, 948 F.3d at 1306. Accordingly, because the phrase
“telephone numbers to be called” was the direct object of both “store” and “produce,”
19
the circuit court believed “it would be unnatural” to “splice” those two verbs by
having the phrase “using a random or sequential number generator” modify only
the latter verb. App. A. at 14, citing ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 148-149 (2012) (“Series-Qualifier
Canon”).
These grammatical concerns cannot save the circuit court’s reading of ATDS
for a number of reasons. To begin, a postpositive modifier that follows the shared
direct object of multiple verbs (like the phrase “using a random or sequential
number generator” in the ATDS definition) is often most naturally read to do
exactly what the circuit court says it should not do - modify only one of the verbs
that precede it. Consider the following sentences:
“The surgeon sterilized and incised my elbow, using
a scalpel.”
“Baseball is a sport in which players throw, catch,
or hit a ball, using a bat.”
“This company manufactures and ships widgets,
using the U.S. postal service.”
“I have deduced that Mrs. Peacock either shot or
bludgeoned Colonel Mustard in the Billiard Room,
using the Candlestick.”
In each of these examples, multiple verbs share a direct object, which is
followed by a modifying phrase that is most naturally read to modify only the last
verb in the series. One need not “contort the [] text almost beyond recognition”
(App. A. at 14) to conclude that the surgeon used the scalpel to incise my elbow, not
to sterilize it. Likewise, no rule of grammar requires the reader to conclude that
20
baseball players use a bat to throw a baseball, or that a company manufactures
widgets using the U.S. Postal service. The ATDS definition is no different. It is not
a “judicial rewrite” (App. A. at 15) to simply conclude that “using a random or
sequential number generator” does not modify “store,” especially when “the phrase
is an admittedly imperfect fit for the verb ‘store’ to begin with. App A. at 14.
That is why the so-called “series-qualifier canon” canon cited by the circuit
court does not apply here. On its face, the cannon states: “When there is a
straightforward, parallel construction that involves all nouns or verbs in a series, a
prepositive or postpositive modifier normally applies to the entire series.” SCALIA &
GARNER, READING LAW 147 (emphasis added). Just as there is no straightforward
way for Ms. Peacock to shoot Colonel Mustard using a candlestick, there is no
straightforward way to store telephone numbers using a random or sequential
number generator, as everyone agrees. That is why the series-qualifier canon,
“[p]erhaps more than most of the other canons, . . . is highly sensitive to context.”
Id. at 150. It cannot be applied to the ATDS definition because the context
precludes it. Not only does it make no sense to store numbers using a random or
sequential number generator, doing so would render the word store superfluous
(supra), and conflict with the other contextual evidence that congress intended to
regulate list-based autodialers.
More importantly, the series-qualifier canon cannot overcome the rule
against superfluity. In Lockhart, this Court considered a sentencing provision in a
child pornography statute that applied if the offender had “a prior conviction . . .
21
under the laws of any State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward.” Lockhart, 136 S. Ct. at 961. As
the Court put it, “[t]he question before us is whether the phrase ‘involving a minor
or ward’ modifies all items in the list of predicate crimes (‘aggravated sexual abuse,’
‘sexual abuse,’ and ‘abusive sexual conduct’) or only the one item that immediately
precedes it (‘abusive sexual conduct’). Ibid. Like the circuit court here, Lockhart
argued that the series-qualifier canon required the modifier to apply to all of the
items in the series preceding it because it would represent the most natural reading
of the language. Id. at 965. The Court rejected application of the series-qualifier
canon, however, because doing so would create a superfluity problem by making
each of the items in the series “hopelessly redundant.” Lockhart, 136 S. Ct. at 96566 (“it is clear that applying the limiting phrase to all three items would risk
running headlong into the rule against superfluity by transforming a list of
separate predicates into a set of synonyms describing the same predicate.”).
Lockhart thus rejected the most natural construction of the statute at issue in
that case because doing so avoided the superfluity problem that reading would
create. Ibid. Lockhart establishes that the rule against superfluity should
supersede a court’s concerns about grammar. Following Lockhart, the Tenth Circuit
recently rejected application of the series-qualifier canon to avoid a superfluity
problem. Jordan v. Maxim Healthcare Servs., 950 F.3d 724, 747 (10th Cir. 2020)
(“As in Lockhart, following the series-qualifier canon here creates (for reasons
explicated supra) serious surplusage; it makes ‘companions’ and ‘casual babysitters’
22
redundant with ‘domestic employees.’”) The circuit court should have done the
same in this case.
4. The statutory context of the TCPA also confirms its application to listbased autodialers and precludes the circuit’s interpretation. First, the statute
creates an affirmative defense for ATDS calls made to cellular telephone numbers
when they are made with “the prior express consent of the called party.” 47 U.S.C. §
227(b)(1)(A). A consent defense for ATDS calls serves little purpose if the only
systems regulated by the ATDS provision are those that dial telephone numbers
generated out of thin air. Users of those systems could only ever establish a consent
defense through sheer dumb luck because they are, by definition, calling completely
arbitrary telephone numbers. The only conceivable way for callers using automated
systems to ensure they call telephone numbers with consent is to use a targeted list
of telephone numbers believed to have consent. But, of course, if they do that, then
they are not using an ATDS (as the circuit court sees it) in the first place, and thus
have no need for a consent defense. See Marks, 904 F.3d at 1052 (“to take advantage
of this permitted use, an autodialer would have to dial from a list of phone numbers
of persons who had consented to such calls, rather than merely dialing a block of
random or sequential numbers.”)
As the Sixth Circuit held in Allan, “[t]he consent exception is key to defining
ATDS because an exception cannot exist without a rule. An exception for consentedto calls implies that the autodialer ban otherwise could be interpreted to prohibit
consented-to calls. And consented-to calls by their nature are calls made to known
23
persons, i.e., persons whose numbers are stored on a list and were not randomly
generated. Therefore, the TCPA's exception for calls made to known, consenting
recipients implies that the autodialer ban applies to stored-number systems.” Allan,
2020 U.S. App. LEXIS 23935 at * 15-16.
Second, “the now-defunct government debt collection exemption implies that
the autodialer ban covers stored-number systems.” Id. at * 18. Congress amended
the statute to add the government debt collector exemption on November 2, 2015.
See Bipartisan Budget Act of 2015, 114 Bill Tracking H.R. 1314. Although this
Court has since severed that amendment from the statute as an unconstitutional
content-based restriction on speech (Barr v. Am. Ass'n of Political Consultants, Inc.,
140 S. Ct. 2335 (2020)), its addition to the statute in 2015 is significant in
understanding the scope of the act. At that time, the statute’s application to listbased dialing systems had been well established for over twelve years and was
considered binding under the Hobbs Act. See 2003 Order, 18 FCC Rcd. at ¶ 12.
Moreover, the Courts of Appeals had consistently confirmed the FCC’s
interpretation of the statute. See e.g., Soppet v. Enhanced Recovery Co., 679 F.3d
637, 638-39 (7th Cir. 2012); Mais, 768 F.3d at 1114; Meyer, 707 F.3d at 1043.
Congress thus knew that the statute applied to list-based dialing systems
used by the government’s debt collectors and so enacted the amendment specifically
“to authorize the use of automated telephone equipment to call cellular telephones
for the purpose of collecting debts owed to the U.S. government.” Bipartisan Budget
Act of 2015, 114 Bill Tracking H.R. 1314. By amending the statute to add the
24
exemption, Congress ratified a “consistent judicial construction” of the statute. See
Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 185 (1994) (“When
Congress reenacts statutory language that has been given a consistent judicial
construction, we often adhere to that construction in interpreting the reenacted
statutory language.”); see also Marks, 904 F.3d at 1052 (“Because we infer that
Congress was aware of the existing definition of ATDS, its decision not to amend
the statutory definition of ATDS to overrule the FCC's interpretation suggests
Congress gave the interpretation its tacit approval.”)
This amendment is akin to the amendment addressed in Tex. Dep’t of Hous.
& Cmty. Affairs. v. Inclusive Cmtys Project, Inc., 135 S. Ct. 2507, 2520 (2015). The
issue in that case was whether the Fair Housing Act allowed for “disparate-impact”
claims. Id. at 2513. As is the case here, Congress amended the statute to create
certain exemptions from liability for disparate-impact claims when disparate-impact
liability had already been well established in the lower courts. Id. at 2519. This
Court ruled that, through this amendment, “Congress ratified disparate-impact
liability.” Id. at 2521. In addition, the Court held that because the amendment
created exemptions to disparate-impact liability, it “would be superfluous if
Congress had assumed that disparate-impact liability did not exist” Id. at 2520.
Thus, the Court was compelled to construe the statute as imposing general
disparate-liability “in order to avoid a reading which renders some words altogether
redundant” Id. The same is true here. Congress’s amendment creating an
exception to ATDS liability for government debt collectors only makes sense if
25
Congress understood the statute to impose liability on the list-based dialing
systems in the first place. Congress ratified that well-established interpretation of
the act when in enacted the amendment.
B. The Circuit Court’s Speculative Concerns about the Statute’s
Application to Smartphones are Unfounded
The only other reason the circuit court rejected Petitioner’s interpretation of the
statute was the unfounded concern that “it would create liability for every text
message sent from an iPhone.” App. A. at 16. The circuit court reached this
conclusion because iPhones apparently have an obscure “Do Not Disturb While
Driving” feature: “If someone sends you a message [while this feature is turned on],
they receive an automatic reply letting them know that you’re driving.” Ibid.
As an initial matter, the ATDS definition drafted in 1991 should not be
limited based on smartphone technology that did not exist until decades later.
Doing so would eviscerate the TCPA by allowing virtually all telemarketing calls
and ignore Congress’ concerns concern that list based dialing systems were making
targeted telemarketing calls without consent when the TCPA was enacted.
Moreover, the functionality the court was concerned with simply does not
turn an iPhone into an ATDS. The ATDS definition covers systems that store
multiple “telephone numbers (plural) to be called” and then automatically “dial[s]
such numbers” (plural). 47 U.S.C. § 227(a)(1) (emphasis added). In other words, its
plain language is limited to list-based autodialers used to automatically dial
numerous telephone numbers stored in a list. The iPhone’s “do not disturb” feature
does not work as an autodialer – it does not autodial a series of numbers that were
26
stored to be called. It is a one-off reply to an incoming message. Moreover, as the
sixth circuit noted in Allan, “automatic reply messages are only sent in reply.
Plaintiffs would have a tough go showing that they did not consent to receiving a
message after they themselves initiated contact. At bottom, [these] ‘pragmatic’
concerns are really a parade of horribles.” 2020 U.S. App. LEXIS 23935 at * 26.
The fact is that no court has ever found anyone liable under the TCPA’s
ATDS provision for ordinary use of a smartphone and there is little reason to think
that any court would. “Out of the box” (App. A. at 16) smartphones not only fail to
satisfy the plain language of the ATDS definition, they do not match up to that
language when the words are “read in their context and with a view to their place in
the overall statutory scheme.” Lockhart, 136 S.Ct. at 963; see also New Prime Inc. v.
Oliveira, 139 S.Ct. 532, 539 (2019) (“It’s a fundamental canon of statutory
construction that words generally should be interpreted as taking their ordinary
meaning at the time Congress enacted the statute.”) (citation omitted).
Accordingly, in the highly speculative and unlikely scenario that someone is
ever sued for the normal use of a smartphone, the court in that case could rightly
dismiss the case for failure to state a claim. Or that court could rightly dismiss the
case because the plaintiff does not “fall within the zone of interests protected by the
law invoked” and would therefore lack statutory standing to proceed. United States
v. All Funds on Deposit with R.J. O’Brien & Assocs., 783 F.3d 607, 617 (7th Cir.
April 2, 2015), quoting Allen v. Wright, 468 U.S. 737, 751 (1984). Or that court
could rightly dismiss the case because application of the TCPA would be
27
unconstitutional as applied to such conduct. See Regan v. Time, Inc., 468 U.S. 641,
651 n. 8 (1984) (“one arguably unconstitutional application of the statute does not
prove that it is substantially overbroad, particularly in light of the numerous
instances in which the requirement will easily be met.”)
This Court has frequently held that the proper course in such situations is to
leave resolution of the hypothetical issue to the court that might actually, if ever,
hear such case. United States v. National Dairy Products Corp., 372 U.S. 29, 32
(1963) (“[A] limiting construction could be given to the statute by the court
responsible for its construction if an application of doubtful constitutionality were . .
. presented.”); Coleman v. Tollefson, 135 S. Ct. 1759, 1764-65 (2015) (“If and when
the situation that Coleman hypothesizes does arise, the courts can consider the
problem in context.”)
Concerns about a hypothetical application of the statute to everyday use of a
smartphone, which did not even exist in 1991, are simply too speculative and
attenuated to eliminate the statute’s application to dialing systems commonly used
by telemarketers prior to 1991. Doing so would “close[] the courthouse door to a
broad swath of consumers who . . . have suffered the very harm for which Congress
provided recourse.” Glasser, 948 F.3d at 1318 (Dissenting Opinion).
This Court reached a similar conclusion in Lawson, where it considered the
scope of the whistleblower protections in the Sarbanes-Oxley Act of 2002, which
prohibited public companies, their officers, employees, contractors, subcontractors,
and agents from discriminating against “an employee” because of whistleblowing
28
activity. Lawson, 571 U.S. at 432. The question before the Court was whether the
term “an employee” applied only to employees of a public company itself, or whether
it also included employees of its officers, contractors, etc. Id. at 433. FMR argued
that the term “an employee” “must be read to refer exclusively to public company
employees to avoid the absurd result of extending protection to the personal
employees of company officers and employees, e.g., their housekeepers or
gardeners.” Id. at 445. The Court rejected the argument for two reasons that are
relevant here. First, the Court found there to be “scant evidence . . . that these
floodgate-opening concerns are more than hypothetical” given that nobody had
identified a single case in which such allegations had been made Id. at 452. Second,
the Court held that narrowly construing the term “an employee” to apply only to
employees of the public company itself would contravene the legislative intent by
excluding the entire mutual fund industry from the scope of a statute, which was an
industry that Congress clearly had in mind when it enacted the statute. Id. at 453.
The Court accordingly refused to so narrowly construe the statute because of
speculation that others might take it too far. “[I]t would thwart Congress’ dominant
aim if contractors were taken off the hook for retaliating against their
whistleblowing employees, just to avoid the unlikely prospect that babysitters,
nannies, gardeners, and the like will flood OSHA with §1514A complaints.” Ibid.
The same considerations apply here. There is no evidence whatsoever that
anybody has ever been sued under the TCPA for the normal use of a smartphone.
Furthermore, excluding list based dialing systems from the scope of the statute over
29
such concerns would thwart Congress’s primary purpose of alleviating consumers
from the burden of automated telemarketing calls.
C. The Circuit Court’s Interpretation Allows Telemarketers to Easily
Circumvent the Statute
The circuit court’s view is also untenable because it would allow
telemarketers to easily circumvent the statute. As an initial matter, virtually every
telemarketer uses a list rather than dialing random telephone numbers and there is
little evidence of any case brought under the TCPA involving a system that actually
produced random telephone numbers. But even if a telemarketer wanted to dial
random telephone numbers, it could easily use a list to do so. A telemarketer could
simply purchase a list of, for instance, every valid telephone number in the United
States, a particular state, or perhaps a list containing only those valid numbers
beginning with a particular area code. A system that automatically dials telephone
numbers from that list would not be an ATDS under the circuit court’s view because
it didn’t utilize a random or sequential number generator. Yet the result is
completely random and automated telephone calls made when there is no
connection between the caller and the call recipient. Telemarketers employing such
a list would be free to unleash billions of calls upon the public with reckless
abandon.
Similarly, a system operated by Alphabet, Inc., that dials from a preset list
containing only the telephone numbers of every person using Google to search the
internet, would also not be covered. That system would also be dialing from a
“preset list” containing millions of telephone numbers. One might be inclined to
30
spot a difference in that the Alphabet system, and Respondent’s system here, are
calling numbers believed to be affiliated with the users of their services. Yet that
distinction is already accounted for in the statute via the affirmative defense of
“prior express consent,” which allows business to use automatic dialing systems to
call customers who have given prior express consent to be called. 47 U.S.C. §
227(b)(1)(A). If Congress did not intend for its ATDS prohibitions to apply to calls
made by businesses to numbers believed to belong to their customers, it could have
easily drafted statutory language to exclude such uses of automatic dialing systems.
Instead of doing that, it created a consent defense that would have been
unnecessary if the prohibitions did not apply in the first place.
The mere use of a stored “list” does not prevent the dialing of random, or
indeed completely arbitrary telephone numbers, and is therefore a pointless way to
divide regulated and unregulated autodialers.
D. The Court should Grant Certiorari to Resolve the Circuit Split
For all of these reasons, Petitioner contends the ATDS definition must be
read to encompass list-based autodialers. And while there are three circuit courts
that agree with Petitioner, the fact remains three other circuit courts, including the
court below, have adopted a contrary interpretation of the statute. Without final
resolution of the issue by this Court, both telemarketers and the persons they seek
to call will face uncertainty and divergent outcomes based solely on their geographic
location. Congress intended for this federal statute to have a uniform application
across the United States. Granting certiorari to resolve the question presented will
bring uniformity to the law.
31
CONCLUSION
For the foregoing reasons, the Court should grant the petition for certiorari.
Respectfully Submitted,
KEITH J. KEOGH
Counsel of Record
TIMOTHY J. SOSTRIN
KEOGH LAW, LTD.
55 W. Monroe St., Ste. 3390
Chicago, IL 60603
312-726-1092
keith@keoghlaw.com
Counsel for Petitioner
August 17, 2020
32
APPENDIX
APPENDIX A
Case: 19-1738
Document: 42
Filed: 02/19/2020
Pages: 20
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1738
ALI GADELHAK, on behalf of himself
and all others similarly situated,
Plaintiff‐Appellant,
v.
AT&T SERVICES, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17‐cv‐1559 — Edmond E. Chang, Judge.
____________________
ARGUED SEPTEMBER 27, 2019 — DECIDED FEBRUARY 19, 2020
____________________
Before WOOD, Chief Judge, and KANNE and BARRETT, Circuit
Judges.
BARRETT, Circuit Judge. The wording of the provision that
we interpret today is enough to make a grammarian throw
down her pen. The Telephone Consumer Protection Act bars
certain uses of an “automatic telephone dialing system,”
which it defines as equipment with the capacity “to store or
produce telephone numbers to be called, using a random or
Case: 19-1738
Document: 42
Filed: 02/19/2020
2
Pages: 20
No. 19‐1738
sequential number generator,” as well as the capacity to dial
those numbers. We must decide an issue that has split the cir‐
cuits: what the phrase “using a random or sequential number
generator” modifies.
We’ll save the intense grammatical parsing for the body of
the opinion—here, we’ll just give the punchline. We hold that
“using a random or sequential number generator” modifies
both “store” and “produce.” The system at issue in this case,
AT&T’s “Customer Rules Feedback Tool,” neither stores nor
produces numbers using a random or sequential number gen‐
erator; instead, it exclusively dials numbers stored in a cus‐
tomer database. Thus, it is not an “automatic telephone dial‐
ing system” as defined by the Act—which means that AT&T
did not violate the Act when it sent unwanted automated text
messages to Ali Gadelhak.
I.
This dispute stems from AT&T’s “Customer Rules Feed‐
back Tool,” a device that sends surveys to customers who
have interacted with AT&T’s customer service department.
Using this tool, AT&T sent Chicago resident Ali Gadelhak
five text messages asking survey questions in Spanish. But
Gadelhak is neither an AT&T customer nor a Spanish speaker,
and his number is on the national “Do Not Call Registry.” An‐
noyed by the texts, Gadelhak brought a putative class action
against AT&T for violating the Telephone Consumer Protec‐
tion Act, which Congress enacted in 1991 to address the prob‐
lem of intrusive telemarketing.
With some exceptions not relevant here, the Act prohibits
the use of an “automatic telephone dialing system” to call or
text any cellular phone without the prior consent of the
Case: 19-1738
Document: 42
Filed: 02/19/2020
No. 19‐1738
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3
recipient, as well as to call certain hospital numbers. 47 U.S.C.
§ 227(b)(1). An “automatic telephone dialing system” is de‐
fined as:
equipment which has the capacity—
(A) to store or produce telephone numbers to be
called, using a random or sequential num‐
ber generator; and
(B) to dial such numbers.
Id. § 227(a)(1); see also Campbell‐Ewald Co. v. Gomez, 136 S. Ct.
663, 667 (2016) (clarifying that text messages are covered). The
success of Gadelhak’s suit depends on whether AT&T’s feed‐
back tool meets this definition. Unfortunately, the awkward
statutory wording, combined with changes in technology,
makes this a very difficult question.
At the time that the Telephone Consumer Protection
Act was passed, telemarketers primarily used systems that
randomly generated numbers and dialed them, and everyone
agrees that such systems meet the statutory definition. But
that’s not how AT&T’s customer feedback tool works. The
system, like others commonly used today, pulls and dials
numbers from an existing database of customers rather than
randomly generating them. (Given that its tool pulls exclu‐
sively from its customer database, AT&T posits that Gadelhak
received messages because of a typographical error.) Deter‐
mining whether such systems meet the statutory definition
has forced courts to confront an awkwardness in the statutory
language that apparently didn’t matter much when the stat‐
ute was enacted: it’s not obvious what the phrase “using a
random or sequential number generator” modifies. The an‐
swer to that question dictates whether the definition captures
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only the technology that predominated in 1991 or is broad
enough to encompass some of the modern, database‐focused
systems.
II.
Before we analyze the merits, though, we must address
the preliminary matter of Gadelhak’s standing to bring this
suit. The doctrine of standing is rooted in Article III of the U.S.
Constitution, which limits the federal judicial power to re‐
solving “Cases” or “Controversies.” U.S. CONST. art. III, § 2.
To satisfy the standing requirement, the plaintiff must claim
“to have suffered an injury that the defendant caused and the
court can remedy.” Casillas v. Madison Ave. Assocs., Inc., 926
F.3d 329, 333 (7th Cir. 2019). If a plaintiff lacks standing, a fed‐
eral court lacks jurisdiction.
While AT&T does not challenge Gadelhak’s standing, we
have an independent obligation to confirm our jurisdiction
before adjudicating a case. FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 231 (1990). To be sure, the obligation to verify our
jurisdiction in every case does not mean that we have to dis‐
cuss it in every opinion. Here, though, the question whether
plaintiffs like Gadelhak have standing is difficult enough to
have divided the circuits. The Eleventh Circuit has held that
the receipt of an unwanted automated text message is not a
cognizable injury under Article III because it is insufficiently
“concrete.” Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir.
2019). The Second and Ninth Circuits have come out the other
way. Melito v. Experian Mtkg. Sols., Inc., 923 F.3d 85, 92–93 (2d
Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d
1037, 1042–43 (9th Cir. 2017). Given the split, it is important
for us to show our work.
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To qualify as “concrete,” an injury must be “real” rather
than “abstract”—that is, “it must actually exist.” Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1548 (2016). A “bare procedural vio‐
lation” does not qualify, even if it gives rise to a statutory
cause of action. Id. at 1549. That is so because Article III cabins
Congress’s authority to create causes of action, and suits in‐
volving abstract injuries lie beyond “the judicial Power.” U.S.
CONST. art. III, § 1. Thus, Gadelhak’s standing to sue is not set‐
tled by the fact that the Telephone Consumer Protection Act
authorizes his suit. See 47 U.S.C. § 227(b)(3). It depends on
whether the unwanted texts from AT&T caused him concrete
harm or were merely a technical violation of the statute.
To determine whether the texts caused concrete harm, we
look to both history and Congress’s judgment. As the Court
has explained, “it is instructive to consider whether an alleged
intangible harm has a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit
in English or American courts.” Spokeo, 136 S. Ct. at 1549. And
because Congress is particularly suited “to identify intangible
harms that meet minimum Article III requirements, its judg‐
ment is also instructive and important.” Id.
We’ll start with history. The common law has long recog‐
nized actions at law against defendants who invaded the pri‐
vate solitude of another by committing the tort of “intrusion
upon seclusion.” RESTATEMENT (SECOND) OF TORTS § 652B
(AM. LAW INST. 1977). In rejecting standing in a similar case,
the Eleventh Circuit suggested that the tort of intrusion upon
seclusion addressed only invasions of privacy like eavesdrop‐
ping and spying, which pose a different kind of harm alto‐
gether. Salcedo, 936 F.3d at 1171. We see things differently.
Courts have also recognized liability for intrusion upon
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seclusion for irritating intrusions—such as when “telephone
calls are repeated with such persistence and frequency as to
amount to a course of hounding the plaintiff.” RESTATEMENT
§ 652B cmt. d; see id. cmt. b, illus. 5; see also Carey v. Statewide
Fin. Co., 223 A.2d 405, 406–07 (Conn. Cir. Ct. 1966); Housh v.
Peth, 133 N.E.2d 340, 344 (Ohio 1956); Household Credit Servs.,
Inc. v. Driscol, 989 S.W.2d 72, 84–85 (Tex. App. 1998). The harm
posed by unwanted text messages is analogous to that type of
intrusive invasion of privacy.
Now, for Congress’s judgment. In passing the Act, Con‐
gress decided that automated telemarketing can pose this
same type of harm to privacy interests. Pub. L. No. 102‐243,
§ 2, 105 Stat. 2394, 2394 (1991) (explaining in the findings that
“[u]nrestricted telemarketing … can be an intrusive invasion
of privacy” and characterizing telemarketing as a “nui‐
sance”). While Congress cannot transform a non‐injury into
an injury on its say‐so, that is hardly what it did here. Instead,
Congress identified a modern relative of a harm with long
common law roots. And Gadelhak claims to have suffered the
very harm that the Act is designed to prevent. Cf. Melito, 923
F.3d at 92–93 (reaching the same conclusion).1
1 The Eleventh Circuit maintains that Congress was concerned with
the harm posed by unwanted telephone calls, not text messages. Compare
Salcedo, 936 F.3d at 1172 (no standing in a TCPA suit over an unwanted
text message), with Cordoba v. DirectTV, LLC, 942 F.3d 1259, 1270 (11th Cir.
2019) (finding injury‐in‐fact in a TCPA suit alleging unwanted calls). We
don’t share the view that the two are “categorically distinct.” Salcedo, 936
F.3d at 1172. The undesired buzzing of a cell phone from a text message,
like the unwanted ringing of a phone from a call, is an intrusion into peace
and quiet in a realm that is private and personal. This is the very harm that
Congress addressed.
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The Eleventh Circuit treated the injury in its case as ab‐
stract partly because common law courts generally require a
much more substantial imposition—typically, many calls—to
support liability for intrusion upon seclusion. See, e.g., Sofka v.
Thal, 662 S.W.2d 502, 511 (Mo. 1983). But when Spokeo in‐
structs us to analogize to harms recognized by the common
law, we are meant to look for a “close relationship” in kind,
not degree. See 136 S. Ct. at 1549. In other words, while the
common law offers guidance, it does not stake out the limits
of Congress’s power to identify harms deserving a remedy.
Congress’s power is greater than that: it may “elevat[e] to the
status of legally cognizable injuries concrete, de facto injuries
that were previously inadequate in law.” Id. (alteration in
original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 578
(1992)). A few unwanted automated text messages may be too
minor an annoyance to be actionable at common law. But
such texts nevertheless pose the same kind of harm that com‐
mon law courts recognize—a concrete harm that Congress
has chosen to make legally cognizable.2 Van Patten, 847 F.3d
at 1043.
2 The Eleventh Circuit arguably limited its holding to the receipt of
one text message in violation of the Act, see Salcedo, 936 F.3d at 1174
(J. Pryor, J., concurring in judgment only), suggesting that it might come
out differently in a case in which a greater number of texts strengthened
the analogy to the common law tort. The Second Circuit, by contrast, did
not even mention the number of texts at issue in Melito, 923 F.3d at 92–93,
and the Ninth Circuit held that standing existed in Van Patten when the
defendant allegedly sent only two texts, 847 F.3d at 1041–43. For the rea‐
sons we’ve explained, we agree with the Second and Ninth Circuits that
the number of texts is irrelevant to the injury‐in‐fact analysis.
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We therefore agree with the Second and Ninth Circuits
that unwanted text messages can constitute a concrete injury‐
in‐fact for Article III purposes.
III.
With standing out of the way, we turn to the merits. We
previously addressed the same provision in Blow v. Bijora,
Inc., 855 F.3d 793 (7th Cir. 2017), but at that time, a 2015 FCC
Order interpreting the Act was on the books. We held that
“absent a direct appeal to review the 2015 FCC Order’s inter‐
pretation,” the Hobbs Act required us to adopt the FCC’s def‐
inition of an “automatic telephone dialing system.” Id. at 802;
see 28 U.S.C. § 2342(1). But since we decided Blow, there has
been just such a “a direct appeal to review” the FCC Order:
the D.C. Circuit struck down the 2015 FCC interpretation in
ACA International v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018).
And contrary to Gadelhak’s assertion, ACA International did
not leave prior FCC Orders intact. Instead, the D.C. Circuit
clarified that its review also covered “the agency’s pertinent
pronouncements”—its prior Orders. Id. at 701. Neither Blow
nor any FCC Order binds us in this case. See Glasser v. Hilton
Grand Vacations Co., Nos. 18‐14499 & 18‐14586, 2020 WL
415811, at *6 (11th Cir. Jan. 27, 2020); Marks v. Crunch San Di‐
ego, LLC, 904 F.3d 1041, 1049–50 (9th Cir. 2018); see also
Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018) (im‐
plicitly reaching the same conclusion by declining to defer to
any FCC Order). We therefore interpret the statute’s text as
though for the first time.
There are at least four ways of reading the statutory defi‐
nition of an “automatic telephone dialing system.” First, the
phrase “using a random or sequential number generator”
might modify both store and produce, which would mean that
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a device must be capable of performing at least one of those
functions using a random or sequential number generator to
qualify as an “automatic telephone dialing system.” This is
how the Third and Eleventh Circuits interpret the statute.
Dominguez, 894 F.3d at 119; Glasser, 2020 WL 415811, at *2.3
Second, the phrase might describe the telephone numbers them‐
selves, specifying that the definition captures only equipment
that dials randomly or sequentially generated numbers. This
is how the district court interpreted the provision. Third, the
phrase might limit only the word produce, which would mean
that the definition captures not only equipment that can pro‐
duce numbers randomly or sequentially, but also any equip‐
ment that can simply store and dial numbers. This is the Ninth
Circuit’s interpretation. Marks, 904 F.3d at 1052. Finally, the
phrase could describe the manner in which the telephone
numbers are to be called, regardless of how they are stored,
produced, or generated. Some courts—including the district
court in this case—have alluded to this possibility, although
none has adopted it. See, e.g., Glasser, 2020 WL 415811, at *7.
3 In Dominguez v. Yahoo, Inc. (Dominguez II), the Third Circuit ex‐
plained that after ACA International, it would revert to the interpretation it
had adopted before the 2015 FCC Order. 894 F.3d at 119. Before the Order,
the court had held that the definition covered equipment that “may have
the capacity to store or to produce the randomly or sequentially generated
numbers to be dialed,” and then asked the district court on remand to con‐
sider how a number can be stored using a random number generator.
Dominguez v. Yahoo, Inc. (Dominguez I), 629 F. App’x 369, 372 n.1 (3d Cir.
2015) (emphasis omitted). Dominguez I is not perfectly clear about which
interpretation it applies, but the remand suggests that it reads “using a
random or sequential number generator” to describe how the numbers
may be stored or produced—consistent with the first interpretation that
we summarize.
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A.
We begin with the interpretation adopted by the Third
and Eleventh Circuits. Under their reading, the phrase “using
a random or sequential number generator” modifies both
“store” and “produce,” defining the means by which either
task must be completed for equipment to qualify as an “auto‐
matic telephone dialing system.” That is, the statute ad‐
dresses:
equipment which has the capacity—
(A) to store or produce telephone numbers to be
called, using a random or sequential number gener‐
ator; and
(B) to dial such numbers.
AT&T advocates this reading, which would exclude its cus‐
tomer feedback tool because the tool lacks the capacity either
to store or to produce telephone numbers using a number
generator. Instead, the tool dials numbers only from a cus‐
tomer database.
This interpretation is certainly the most natural one based
on sentence construction and grammar. As the Eleventh Cir‐
cuit explained, “[w]hen two conjoined verbs (‘to store or pro‐
duce’) share a direct object (‘telephone numbers to be called’),
a modifier following that object (‘using a random or sequen‐
tial number generator’) customarily modifies both verbs.”
Glasser, 2020 WL 415811, at *2. The placement of the comma
before “using a random or sequential number generator” in
the statute further suggests that the modifier is meant to ap‐
ply to the entire preceding clause. See ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 150 (2012). That clause is driven by the two
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verbs, “to store or produce.” The sentence’s construction thus
seems to encourage applying the phrase “using a random or
sequential number generator” to both verbs.
But this first interpretation runs into a problem: as one dis‐
trict court wrote, “it is hard to see how a number generator
could be used to ‘store’ telephone numbers.” Pinkus v. Sirius
XM Radio, Inc., 319 F. Supp. 3d 927, 938 (N.D. Ill. 2018). AT&T
counters that a device that generates random numbers and
then dials them does, technically, “store” such a number for
the fleeting interval between those two functions. While that
may be true as a technical matter, as a matter of ordinary us‐
age it’s hard to say that the random number generator is “stor‐
ing” in any notable way. More persuasive, however, is the
point that some systems “store” randomly generated num‐
bers for much longer than a few fleeting moments. The record
before the FCC reveals that at the time of the statute’s enact‐
ment, devices existed with the capacity to generate random
numbers and then store them in a file for a significant time
before selecting them for dialing.4 See Noble Systems Corp.,
Comments in Response to the FCC’s Request for Comments
of the Interpretation of the TCPA in Light of the 9th Circuit’s
Decision in Marks v. Crunch San Diego 12–15 (Oct. 16, 2018),
https://ecfsapi.fcc.gov/file/1016271761504/Noble_Sys‐
tem_Comments_FCC_DA18‐1014_FINAL.pdf. The capacity
for storage is more central to such a device’s function.
Gadelhak responds that if the Act had meant to capture
random‐generation devices defined by their storage
4 For a more fulsome history of the statute and the FCC’s regulations
interpreting it, see both Glasser, 2020 WL 415811, at *4–5, and Marks, 904
F.3d at 1043–48.
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capacities, it needn’t have used the word “store” at all. After
all, such a device also necessarily can “produce” numbers us‐
ing a number generator, rendering the “store” option in the
statute superfluous. That surplusage is not a deal‐breaker. See
SCALIA & GARNER, supra, at 176–77 (“Sometimes drafters do re‐
peat themselves and do include words that add nothing of
substance, either out of a flawed sense of style or to engage in
the ill‐conceived but lamentably common belt‐and‐suspend‐
ers approach.”). Given the range of storage capacities among
telemarketing devices at the time of enactment, it is plausible
that Congress chose some redundancy in order to cover “the
waterfront.” Glasser, 2020 WL 415811, at *3.
Notwithstanding the difficulties posed by this interpreta‐
tion, we think that the language bears it. But because of those
difficulties, we proceed to consider whether any of the other
possibilities fares better.
B.
The district court favored the next option: that “using a
random or sequential number generator” modifies the “tele‐
phone numbers” that are dialed. Since the telephone numbers
themselves obviously lack the capacity to “us[e]” a number
generator, the phrase really describes the means by which tel‐
ephone numbers are generated, as follows:
equipment which has the capacity—
(A) to store or produce telephone numbers to be
called, [generated] using a random or sequential
number generator; and
(B) to dial such numbers.
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Under this interpretation, an “automatic telephone dialing
system” is equipment with the capacity to store or produce
telephone numbers generated using a random or sequential
number generator as well as the capacity to dial those num‐
bers. Because AT&T’s system cannot generate random strings
of numbers for itself and instead dials only existing numbers
from AT&T accounts, the district court held that it could not
satisfy the statutory definition.
The district court’s interpretation avoids the problems as‐
sociated with the word “store.” But it has a problem of its
own: the grammatical structure of the sentence. The phrase
“using a random or sequential number generator” is an ad‐
verbial phrase with an elided preposition—it means “[by] us‐
ing a random or sequential number generator.” As an adver‐
bial phrase that describes how something is to be done, it can‐
not modify a noun in this context. So, to arrive at its reading,
the district court had to insert a significant word into the stat‐
ute that simply isn’t there. Although the district court’s ver‐
sion of the statute is clearer and therefore tempting, “our task
is to interpret the words of Congress, not add to them.” Evans
v. Portfolio Recovery Assocs., LLC, 889 F.3d 337, 346 (7th Cir.
2018) (citation omitted). The words of Congress, as written,
do not permit this second interpretation.
C.
Gadelhak presses the third option: that the phrase “using
a random or sequential number generator” modifies only the
equipment’s capacity to “produce.” With emphasis, the defi‐
nition would read:
equipment which has the capacity—
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(A) to store or produce telephone numbers to be
called, using a random or sequential number gener‐
ator; and
(B) to dial such numbers.
To Gadelhak, it doesn’t matter that AT&T’s system cannot
generate random or sequential ten‐digit numerical strings. As
he sees it, the capacity to produce numbers using a random
number generator is only one means of meeting the statutory
definition. Gadelhak argues that the disjunctive “or” in “store
or produce” means that an “automatic telephone dialing sys‐
tem” need not produce numbers at all. Since “using a random
or sequential number generator” modifies only “produce,”
Gadelhak argues that all equipment with the capacity to store
telephone numbers to be called and to dial those numbers
qualifies as an automatic telephone dialing system. This is the
interpretation that the Ninth Circuit adopted in Marks v.
Crunch San Diego.
This interpretation eliminates the problem of the first
one—that the phrase is an admittedly imperfect fit for the
verb “store.” And it does not require us to add a word to the
statute as the second one does. But Gadelhak’s approach has
a fatal flaw of its own: it requires us to contort the statutory
text almost beyond recognition. Everyone agrees that “tele‐
phone numbers to be called” is the object of both “store” and
“produce.” That makes sense because “produce” is not set off
from “store” in the text, either with the infinitive “to” or with
a comma. See SCALIA & GARNER, supra, at 148–49. It would be
unnatural, then, to splice “store” and “produce” to have the
final phrase, “using a random or sequential number genera‐
tor,” modify only the latter verb. Gadelhak asks us to reorder
the sentence to separate “store” and “produce” but to clarify
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that “telephone numbers” is the object of both. That would be
a significant judicial rewrite.
Nonetheless, Gadelhak maintains that the statutory struc‐
ture requires this reading. He emphasizes that the statute
carves out a defense for recipients who have given their prior
express consent. See 47 U.S.C. § 227(b)(1)(A) (authorizing the
use of an automatic telephone dialing system for calls or texts
“made with the prior express consent of the called party”). If
an “automatic telephone dialing system” is defined by its ca‐
pacity to generate numbers at random, Gadelhak says, it
would be impossible for a party ever to take advantage of the
consent defense except by coincidence. He explains that a
caller could not know in advance whether the telephone num‐
ber, having been randomly generated, would belong to a
party who had previously consented to being called. See also
Marks, 904 F.3d at 1051 (adopting this argument). But as an‐
other court explained, “it is possible to imagine a device that
both has the capacity to generate numbers randomly or se‐
quentially and can be programmed to avoid dialing certain
numbers ….” Pinkus, 319 F. Supp. 3d at 939. Gadelhak’s ra‐
tionale for choosing an atextual interpretation is therefore un‐
persuasive.
Gadelhak has one last card to play: he insists that Con‐
gress blessed his interpretation of the statute when it
amended the Act in 2015. At that time, the D.C. Circuit had
not yet struck down the 2015 FCC Order interpreting the stat‐
ute in Gadelhak’s favor. Gadelhak asserts that Congress es‐
sentially ratified that interpretation when it amended the stat‐
ute in 2015 to add an exception for government debt collection
and declined to amend the definition in any other respect. See
Pub. L. No. 114‐74, § 301, 129 Stat. 584, 588 (2015). We reject
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this argument, as has every circuit to consider it. See Glasser,
2020 WL 415811, at *6 (collecting cases). Congressional failure
to act does not necessarily reflect approval of the status quo.
See Alexander v. Sandoval, 532 U.S. 275, 292 (2001). And in any
event, the FCC’s interpretation of the statute was hardly set‐
tled at the time of the congressional amendment—in 2015, the
D.C. Circuit was already reviewing ACA International. It is
therefore particularly difficult to attribute acquiescence to
Congress’s actions that year.
Finally, it is worth noting the far‐reaching consequences
of Gadelhak’s ungrammatical interpretation: it would create
liability for every text message sent from an iPhone. That is a
sweeping restriction on private consumer conduct that is in‐
consistent with the statute’s narrower focus. Gadelhak argues
that to qualify as an “automatic telephone dialing system” a
device need only have the “capacity … to store … telephone
numbers” and then to call or text them automatically. Every
iPhone today has that capacity right out of the box. An iPhone
of course can store telephone numbers; it can also send text
messages automatically, for example by using the “Do Not
Disturb While Driving” function. See How to Use Do Not Dis‐
turb While Driving, APPLE (Sept. 19, 2019), https://support.ap‐
ple.com/en‐us/HT208090 (“If someone sends you a message
[while this feature is turned on], they receive an automatic re‐
ply letting them know that you’re driving.”). Every iPhone,
then, has the necessary capacities to meet the statutory defi‐
nition. That means that under Gadelhak’s interpretation,
every call or text message sent from an iPhone without the
prior express consent of the recipient could subject the sender
to a $500 fine. See 47 U.S.C. § 227(b)(3)(B). Considering the
statute as a whole, that result makes little sense. The Act’s
other provisions address narrow conduct much more likely to
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be performed by telemarketers than by private citizens—for
example, the use of “an artificial or prerecorded voice.” Id.
§ 227(b)(1)(A). The definition of an “automatic telephone di‐
aling system” would be an outlier within the statutory
scheme if it were to capture such a wide swath of everyday
conduct.
D.
There is one final possibility: that “using a random or se‐
quential number generator” modifies how the telephone
numbers are “to be called.” On this reading, an “automatic
telephone dialing system” is:
equipment which has the capacity—
(A) to store or produce telephone numbers to be
called[] using a random or sequential number gener‐
ator; and
(B) to dial such numbers.
In other words, the definition captures devices with the ca‐
pacity to store or to produce telephone numbers that will be
dialed by a random or sequential number generator. The rec‐
ord does not fully explain whether AT&T’s system has the
necessary capabilities to be considered an “automatic tele‐
phone dialing system” under this definition; neither party ad‐
vanced this reading and other courts have only danced
around it. See, e.g., Glasser, 2020 WL 415811, at *7 (identifying
this interpretation as “plausible” but rejecting it without com‐
ment).
A close look convinces us that this fourth possibility is also
inferior to the first interpretation. Congress chose to insert a
comma between “to be called” and “using a random or
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sequential number generator.” And “[a] qualifying phrase
separated from antecedents by a comma is evidence that the
qualifier is supposed to apply to all the antecedents instead of
only to the immediately preceding one.” WILLIAM N.
ESKRIDGE JR., INTERPRETING LAW: A PRIMER ON HOW TO READ
STATUTES AND THE CONSTITUTION 67–68 (2016) (citation omit‐
ted). The comma separating “to be called” and “using a ran‐
dom or sequential number generator” therefore indicates that
the modifier refers to the entire clause that precedes it—a
clause driven by the verbs “store” and “produce”—rather
than the phrase immediately adjacent to it.
Of course, we are mindful that “a purported plain‐mean‐
ing analysis based only on punctuation is necessarily incom‐
plete and runs the risk of distorting a statute’s true meaning.”
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S.
439, 454 (1993). We tread especially carefully here, since the
comma seems to be ungrammatical under any interpretation.
As mentioned above, “using a random or sequential number
generator” is an adverbial phrase. To be more specific, it is a
restrictive adverbial phrase, because it provides information
that is essential to the meaning of the sentence. The grammar
and style treatise of record dictates that a comma is inappro‐
priate for a restrictive adverbial phrase found at the end of a
sentence. THE CHICAGO MANUAL OF STYLE ¶ 6.31 (17th ed.
2017).
But we have reason to be confident that the comma before
the modifier deliberately separates it from “to be called.” A
modifying clause following a comma tends not to modify the
very last antecedent before it when that antecedent is “inte‐
grated” into a singular unit. Cyan, Inc. v. Beaver Cty. Emps. Ret.
Fund, 138 S. Ct. 1061, 1077 (2018) (citation omitted). In the
Case: 19-1738
Document: 42
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19
context of autodialing, the phrase “telephone numbers to be
called” has consistently been used as an integrated unit. A
1986 patent for a method of randomizing telephone numbers,
for example, contains five references to “numbers to be
called.” U.S. Patent No. 4,741,028 (filed July 30, 1986). The
phrase was also common in the state antitelemarketing stat‐
utes that preceded the federal legislation. Across statutes with
different sentence structures and different scopes, the phrase
“telephone numbers to be called” appears again and again.
See, e.g., MASS. GEN. LAWS ch. 159 § 19B (1986); MISS. CODE
ANN. § 77‐3‐451 (1989); N.Y. GEN. BUS. LAW § 399‐p (1988).
These uses suggest that “telephone numbers to be called” is a
single noun unit characterized by the purpose of the numbers.
The comma, therefore, seems to have been a deliberate draft‐
ing choice to separate the modifying clause from the words
that immediately precede it.
Satisfied that “using a random or sequential number gen‐
erator” does not describe how the numbers are “to be called,”
we are left again with the first interpretation. It is admittedly
imperfect. But it lacks the more significant problems of the
other three interpretations and is thus our best reading of a
thorny statutory provision. We therefore hold that the phrase
“using a random or sequential number generator” describes
how the telephone numbers must be “stored” or “produced.”
***
The district court held that AT&T’s system did not qualify
as an “automatic telephone dialing system” because it lacked
the capacity to generate random or sequential numbers. Alt‐
hough we adopt a different interpretation of the statute, un‐
der our reading, too, the capacity to generate random or
Case: 19-1738
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No. 19‐1738
sequential numbers is necessary to the statutory definition.
The district court’s judgment is therefore AFFIRMED.
APPENDIX B
Case: 1:17-cv-01559 Document #: 86 Filed: 03/29/19 Page 1 of 17 PageID #:1212
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALI GADELHAK, on behalf of himself
and all others similarly situated,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
AT&T SERVICES, INC.,
Defendant.
No. 17-cv-01559
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Ali Gadelhak brought this proposed class action after he received
automated text messages from Defendant AT&T Services, Inc. (AT&T), allegedly in
violation of the Telephone Consumer Protection Act (TCPA).1 Gadelhak and AT&T
now cross-move for summary judgment. The motions present the parties’
disagreement over the proper definition of the statutory term “automated telephone
dialing system,” and whether AT&T employed one when it sent text messages to
Gadelhak and others. For the reasons explained below, the Court grants AT&T’s
motion and denies Gadelhak’s motion.
I. Background
In deciding cross motions for summary judgment, the Court views the facts in
the light most favorable to the respective non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). So when the Court
1This Court has subject matter jurisdiction over the case under 28 U.S.C. § 1331 and
29 U.S.C § 1132.
SA 2
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evaluates Gadelhak’s summary judgment motion, AT&T gets the benefit of
reasonable inferences; conversely, when evaluating AT&T’s motion, the Court gives
Gadelhak the benefit of the doubt.
AT&T is a major telecommunications corporation. R. 22, Answer ¶¶ 6, 7. Since
around 2015, AT&T has engaged in a program called the AT&T Customer Rules
Feedback Tool, also known (at least to the parties) as “TACRFT.” R. 70.8, Lyon Dep.
at 12:9-12; R. 52.2, Lyon Dec. ¶2. According to AT&T, the program sends surveys to
customers of its corporate affiliates—DIRECTV, for example—via text message in
order to assess customers’ recent interactions with service representatives. Lyon Dec.
¶¶ 2-4. At the end of each survey, AT&T also includes an advertisement for its
smartphone application, MyAT&T. R. 70.5, Abel Dep. at 69:21-25.
AT&T employs an automated process to select the numbers to which it sends
the TACRFT surveys. First, a computer system for each AT&T affiliate identifies
customer accounts that have engaged in qualifying transactions with a customer
service representative. Lyon Dep at 35:7-13, 36:15-37:13; Lyon Dec. ¶ 5. Then, each
of those computer systems sends a list of the phone numbers associated with each
flagged account to AT&T’s Market Research Organization for further processing.
Lyon Dep. at 139:21-24. The list of these phone numbers is known as the Gross
Sample List. Id. at 139:21-140:6. This list includes every phone number associated
with a flagged account, rather than just the phone number that engaged in the
qualifying transaction. Lyon Dep. at 21:6-22:2; R. 74, Def.’s Resp. PSOF ¶¶ 7, 8. Once
the Gross Sample List is compiled, a computer system within the Market Research
2
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Organization narrows down the list to one number for each account by (1) removing
any non-cellular numbers; and (2) selecting the first cellular number listed for each
account. Lyon Dep. at 140:7-25; R. 74.3, Lyon Dec. II ¶¶ 3-6. This pared-down list is
then sent to AT&T’s outside vendor, Message Broadcast, who sends out preprogrammed text-message surveys previously drafted by AT&T. Lyon Dep. at 57:1416, 130:13-20; R. 70.7, Joiner Dep. at 63:6-12. It is undisputed that a computer, not a
human, compiles the list of telephone numbers to which these surveys are directed.
Def.’s Resp. PSOF ¶¶ 9-11.
Plaintiff Ali Gadelhak lives in Chicago, Illinois and is not a customer of AT&T
or any AT&T affiliate. R. 70.9, Gadelhak Dep. at 81:7-82:4, 84:2-85:14; Def.’s Resp.
PSOF ¶ 38. Gadelhak registered his cell phone number with the Do Not Call list in
May 2014. Gadelhak Dep. at 76:12-77:24. Nonetheless, in July 2016, Gadelhak
received five text messages from AT&T asking survey questions in Spanish. Lyon
Dec., Ex. A, Gadelhak Call Log; Gadelhak Dep., Ex. 33. AT&T insists that TARCRFT
is designed to send text messages only to AT&T customers, so Gadelhak’s number
must have been erroneously listed on an AT&T account. Lyon Dec. ¶ 5; Def.’s Resp.
PSOF ¶ 41.
In February 2017, Gadelhak brought this proposed class action against AT&T
for violations of the Telephone Consumer Protection Act. Gadelhak alleges that AT&T
“negligently, knowingly, and/or willfully contacted” him via text message using an
automated telephone dialing system (ATDS) “without his prior consent.” R. 20,
Compl. ¶ 1. He also alleges that AT&T did the same to others, on whose behalf
3
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Gadelhak brings class allegations. Id. ¶¶ 34, 35, 39. Both parties now move for
summary judgment, content to litigate class certification (if Gadelhak were to prevail)
after a decision on summary judgment. In its motion, AT&T asserts that it did not
use an ATDS to send a text message to Gadelhak and thus did not violate the TCPA.
R. 51, Def.’s Br. at 1. For his part, Gadelhak asks the Court to declare as a matter of
law that AT&T’s TACRFT system employs an ATDS. R. 71, Pl.’s Br. at 1-2. Much of
the parties’ dispute boils down to whether the D.C. Circuit’s opinion in ACA
International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) nullified previous FCC orders
defining the term ATDS and, if so, what is the proper definition of that statutory term
under the plain language of the TCPA.
II. Legal Standard
Summary judgment must be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
summary judgment motions, courts must “view the facts and draw reasonable
inferences in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007) (cleaned up).2 The Court “may not weigh conflicting evidence or
make credibility determinations,” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d
2This opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).
4
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697, 704 (7th Cir. 2011) (cleaned up), and must consider only evidence that can “be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
The party seeking summary judgment has the initial burden of showing that there is
no genuine dispute and that they are entitled to judgment as a matter of law.
Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008). If this burden is met, the adverse party must then “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
II. Analysis
A. Statutory and Regulatory History of the TCPA
To start, it is necessary to set forth the TCPA’s framework. Enacted in 1991,
the TCPA generally prohibits making calls using “any automatic telephone dialing
system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). The statute
defines ATDS as “equipment which has the capacity—(A) to store or produce
telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.” § 227(a)(1). This general prohibition has three exceptions:
(1) calls made with “prior express consent;” (2) emergency calls; and (3) calls made to
collect government debts. § 227(b)(1)(A).
The FCC has the authority to promulgate regulations implementing the TCPA.
See ACA International, 885 F.3d at 693. In 2003, the FCC promulgated regulations
that interpreted the term ATDS to include “equipment that dials numbers and, when
certain computer software is attached, also assists telemarketers in predicting when
5
SA 6
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a sales agent will be available to take calls.” In re Rules & Regulations Implementing
the Tel. Consumer Prot. Act of 1991 (2003 Order), 18 FCC Rcd. 14014, 14091-93 ¶¶
131-133 (2003). The Commission referred to these types of devices as “predictive
dialers” and explained that they have “the capacity to store or produce numbers and
dial those numbers at random, in sequential order, or from a database of numbers.”
Id. at 14091 ¶ 131. According to the 2003 Order, telemarketers may have primarily
relied on dialing equipment “to create and dial 10-digit telephone numbers
arbitrarily” in the past, but “to exclude… equipment that use[s] predictive dialing
software from the definition of [ATDS] simply because it relies on a given set of
numbers would lead to an unintended result.” Id. at 14092 ¶¶ 132, 133 (emphasis
added). The Commission reasoned that it made little sense to permit calls to “wireless
numbers… when the dialing equipment is paired with predictive dialing software and
a database of numbers,” but prohibit calls “when the equipment operates
independently of such lists and software packages.” Id. ¶ 133.
The Commission affirmed this interpretation in 2008, explaining that the 2003
Order “found that, based on the statutory definition of [ATDS], the TCPA’s legislative
history, and current industry practice and technology, a predictive dialer falls within
the meaning and definition of autodialer and the intent of Congress.” See In re Rules
& Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2008 Declaratory
Ruling”), 23 FCC Rcd. 559, 566 ¶ 13 (2008). Although a party to the 2008 proceeding
urged the FCC to find that a “predictive dialer meets the definition of autodialer only
when it randomly or sequentially generates telephone numbers, not when it dials
6
SA 7
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numbers from customer telephone lists,” id. at 566 ¶ 12 (emphasis added), the
Commission disagreed, stating that nothing presented by the party “warrant[ed]
reconsideration of [the 2003] findings.” Id. at 567 ¶ 14.
Seven years later, the Commission revisited and again reaffirmed its earlier
take: “predictive dialers, as previously described by the Commission, satisfy the
TCPA’s definition of ‘autodialer.’” In re Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7972 ¶ 10
(2015). The Commission compared predictive dialers to dialers that “utilize random
or sequential numbers instead of a list of numbers” and stated that both “retain the
capacity to dial thousands of numbers in a short period of time.” Id. at 7973 ¶ 14. In
the Commission’s view, any device that “generally has the capacity to store or
produce, and dial random or sequential numbers… even if it is not presently used for
that purpose, including when the caller is calling a set list of consumers,” met the
definition of “autodialer” under the TCPA. Id. at 7972 ¶ 10.
Under the Hobbs Act, this Court, sitting as a district court, does not have the
authority to invalidate the FCC’s rulings, because “[t]he court of appeals … has
exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part) or to determine
the validity of all final orders of the [FCC].” 28 U.S.C. § 2342(1); see also 47 U.S.C. §
402(a) (making § 2342(1) applicable to FCC regulations promulgated under the
TCPA); Blow v. Bijora, 855 F.3d 793, 802 (7th Cir. 2017).3 In ACA International,
3The
Supreme Court is considering this interpretation of the Hobbs Act in PDR
Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705 (oral argument heard on
March 25, 2019). That particular dispute does not impact the Court’s holding here.
7
SA 8
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however, the D.C. Circuit consolidated several Hobbs Act petitions for review of the
2015 Declaratory Ruling and invalidated the Commission’s interpretation of ATDS,
because it “fail[ed] to satisfy the requirement of reasoned decisionmaking.” 885 F.3d
at 703. The D.C. Circuit explained that the 2015 Declaratory Ruling adopted two
irreconcilable definitions of the term ATDS: “A basic question raised by the statutory
definition is whether a device must itself have the ability to generate random or
sequential telephone numbers to be dialed. Or is it enough if the device can call from
database of telephone numbers generated elsewhere? The Commission’s ruling
appears to be of two minds on the issue.” Id. at 701 (emphasis in original). Despite
this holding, the D.C. Circuit declined to define ATDS in its own terms, but stated
that it was permissible for the Commission to adopt either interpretation. “But the
Commission cannot, consistent with reasoned decisionmaking, espouse both
competing interpretations in the same order.” Id. at 703. So the D.C. Circuit
invalidated the 2015 Declaratory Ruling.
B. ACA International’s Scope
In this case, neither party disputes that the Commission’s 2015 Declaratory
Ruling was overturned and invalidated by ACA International. Def.’s Br. at 8; Pl.’s Br.
at 15. AT&T, however, argues that the opinion also invalidated the Commission’s
prior rulings defining ATDS, Def,’s Br. at 8-11, while Gadelhak asserts that the case’s
holding is limited to the 2015 Declaratory Ruling, Pl.’s Br. at 15-20. A close read of
ACA International and the 2015 Declaratory Ruling make clear that AT&T has the
better argument.
8
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It is true that the petitions in ACA International sought review only of the 2015
Declaratory Ruling, but the petitions zeroed-in on four specific aspects of the order.
ACA International, 885 F.3d at 693-94. Most pertinent to this case was the
Commission’s interpretation of what functions a system needs to have in order to
qualify as ATDS. On that question, the Commission argued “that the issue was
resolved in prior agency orders—specifically, declaratory rulings in 2003 and 2008,”
and that it was too late to “raise a challenge [to those orders] by seeking review of a
more recent declaratory ruling that essentially ratifies the previous ones.” Id. at 701.
The D.C. Circuit disagreed and proceeded to review all “pertinent pronouncements”
from the Commission on the subject. Id. The court determined that “[t]he agency’s
prior rulings left significant uncertainty about the precise functions an autodialer
must have the capacity to perform,” and then also set aside the Commission’s
“treatment” of the qualifying functions of an ATDS. Id. at 701, 703.
The Commission’s own language in the 2015 Declaratory Ruling also bolsters
the
interpretation
that
ACA
International
nullified
the
FCC’s
previous
pronouncements defining ATDS. The 2015 Declaratory Ruling states that the
Commission “reaffirm[s]” previous statements, and refers specifically to the 2003
Declaratory Ruling. 2015 Declaratory Ruling, 30 FCC Rcd. at 7971 ¶ 10 & n. 39; see
also ACA International, 885 F.3d at 694 (“The Commission reaffirmed prior orders
deciding that ‘predictive dialers’—equipment that can dial automatically from a given
list of telephone numbers using algorithms to predict ‘when a sales agent will be
available’—qualify as autodialers.”).
9
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Moreover, the D.C. Circuit’s concern in ACA International—that the 2015
Declaratory Ruling, “in describing the functions a device must perform to qualify as
an autodialer, fails to satisfy the requirement of reasoned decisionmaking”—equally
applies to the 2003 and 2008 orders. 885 F.3d at 703. The 2003 Order made clear that
the Commission saw a difference between generating and dialing random or
sequential numbers, on the one hand, and dialing from a list of numbers on the other.
2003 Order, 18 FCC Rcd. at 14092 ¶ 132; see also ACA International, 885 F.3d at 702.
But it then went on to state that, “to exclude from these restrictions equipment that
use predictive dialing software from the definition of ‘automated telephone dialing
equipment’ simply because it relies on a given set of numbers would lead to an
unintended result.” Id. at 14092 ¶ 133. The 2008 Declaratory Ruling held the same,
as it simply “affirm[ed]” the interpretation of ATDS promulgated in the 2003 Order.
2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 12. With the Commission’s repeated
affirmations of the prior orders, this Court holds, as other courts in this District have,
that ACA International invalidated the Commission’s understanding of the term
ATDS as articulated in the 2015 Declaratory Ruling, as well as the 2008 Declaratory
Ruling and the 2003 Order. See Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927,
935 (N.D. Ill. 2018); Johnson v. Yahoo!, Inc., 346 F. Supp. 3d 1159, 1161 (N.D. Ill
2018).
C. Defining ATDS Under the TCPA
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
10
SA 11
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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 1113, 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 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). To do so, the Court begins with “the language of the statute itself,”
attending to “the specific context in which that language is used.” Scherr v. Marriott
Int’l, Inc., 703 F.3d 1069, 1077 (7th Cir. 2013) (cleaned up) (quoting McNeill v. United
States, 563 U.S. 816, 819 (2011)). And it must “accord words and phrases their
ordinary and natural meanings and avoid rendering them meaningless, redundant,
or superfluous.” Scherr, 703 F.3d at 1077 (cleaned up).
Under the TCPA, an ATDS has “the capacity to store or produce telephone
numbers to be called, using a random or sequential number generator,” and then call
the numbers. 47 U.S.C. § 227(a)(1). Gadelhak asserts that the phrase “using a
11
SA 12
Case: 1:17-cv-01559 Document #: 86 Filed: 03/29/19 Page 12 of 17 PageID #:1223
random or sequential number generator” modifies only the verb “produce,” and has
no effect on the verb “store.” Pl.’s Br. at 7. Gadelhak cites to the Ninth Circuit opinion
in Marks v. Crunch San Diego, LLC to support this argument. Id. (citing 904 F.3d
1041, 1051-52 (9th Cir. 2018)). In Marks, the Ninth Circuit defined ATDS as
“equipment which has the capacity—(1) to store numbers to be called or (2) to produce
numbers to be called, using a random or sequential number generator—and to dial
such numbers.” 904 F.3d at 1053. The court came to this conclusion after examining
§ 227(a)(1), other provisions of the TCPA, and the legislative history of the statute.
Id. at 1050-53. 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.
To resist this interpretation, Gadelhak points to other provisions in the TCPA.
As he discusses in his brief, there are two exceptions to the prohibition against
12
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automated calls that, it is true, do lead one to question whether calls dialed from a
predetermined list are covered. Pl.’s Br. at 8-10. First, there is an exception for calls
made with the prior consent of the called party. 47 U.S.C. § 227(b)(1)(A). Gadelhak,
citing Marks, argues that there is no way to take advantage of this exception without
dialing from a list of telephone numbers belonging to consenting individuals. Pl.’s Br.
at 9 (citing Marks, 904 F.3d at 1051). Put another way, the exemption seems to imply
that calling from a predetermined list of numbers qualifies a device as an ATDS, but
that when the list is of those individuals who have given their consent, it is exempted
from the prohibition. What Gadelhak overlooks though, is that the consent exception
is drafted in such a way that it also applies to calls made using an artificial or
prerecorded voice—not just those made using an ATDS. 47 U.S.C. § 227(b)(1)(A). So
the consent exception still does have an effect—it does not suffer the embarrassment
of being nugatory—even if ATDS does not cover systems that dial from preset lists.
The consent exception does not undermine the non-preset-list interpretation of
ATDS.
The second exception on which Gadelhak relies is for calls “made solely to
collect a debt owed to or guaranteed by the United States.” 47 U.S.C.
§ 227(b)(1)(A)(iii). But the same reasoning applies to undermine the persuasiveness
of the inference to be drawn from this exception: it also applies to calls made with an
artificial or prerecorded voice. 47 U.S.C. § 227(b)(1)(A). So, again, the federal-debt
13
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exception can co-exist with a definition of ATDS that does not cover calls to a preset
list.4
Similarly, Gadelhak’s argument that Congress ratified the Commission’s
construction of the TCPA when it added the federal-debt exception in 2015, but left
the definition of ATDS unchanged, is insufficient to overcome the plain meaning of
the statutory definition of ATDS. The D.C. Circuit’s review of the 2015 Declaratory
Ruling was already pending at the time of Congress’s amendment. See ACA v. FCC,
Case No. 15-1211 (D.C. Cir.), Dkt. No. 1 (July 10, 2015) (Petition for Review);
Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 301, 129 Stat. 584, 588 (Nov. 2,
2015). As a result, there was no “consistent judicial construction” at the time of the
amendment, precluding any conclusions about Congress’s approval of the
Commission’s interpretation of the statute. See Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 350-51 (2005).
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 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.,
4It must also be said that, as time marches on and Congress adds to and amends a
statutory framework in piecemeal provisions, at some point it is not surprising that
provisions are added as fail-safe measures to broadly prevent the statute’s application in a
particular setting. This might be an instance where Congress simply wanted to guarantee
that the TCPA, which set a statutory damages minimum for violations (and per violation),
would never be applied to attempts to collect a debt owed to the federal government.
14
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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 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
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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 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.
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Case: 1:17-cv-01559 Document #: 86 Filed: 03/29/19 Page 17 of 17 PageID #:1228
IV. Conclusion
For the reasons discussed, Gadelhak’s motion for partial summary judgment
is denied and AT&T’s motion for summary judgment is granted. Final judgment shall
be entered. The status hearing of April 4, 2019 is vacated.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: March 29, 2019
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APPENDIX C
Case: 19-1738
Document: 53
Filed: 03/19/2020
Pages: 1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
March 19, 2020
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19‐1738
ALI GADELHAK, on behalf of himself
and all others similarly situated,
Plaintiff‐Appellant,
v.
AT&T SERVICES, INC.
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17‐cv‐1559
Edmond E. Chang,
Judge.
ORDER
Plaintiff‐Appellant filed a petition for rehearing en banc on March 4, 2020. No
judge in regular active service has requested a vote on the petition for rehearing en
banc*, and all of the judges on the panel have voted to deny rehearing.
Accordingly, IT IS ORDERED that the petition for rehearing en banc is DENIED.
* Judges Joel M. Flaum and Ilana D. Rovner took no part in the consideration of the petition for rehearing
en banc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.