Less than one month after the Eleventh Circuit Court of Appeals severely limited application of the Telephone Consumer Protection Act (TCPA),¹ the Seventh Circuit has joined the now-majority position² regarding the definition of an automatic telephone dialing system (ATDS), with the Third, Seventh and Eleventh Circuits on one side and the Ninth Circuit on the other. This issue is more primed than ever for the Supreme Court to resolve the split.

Before joining the majority on the main issue, the Seventh Circuit sided with the Second and Ninth Circuits on a critical preliminary issue, holding that the receipt of one unsolicited text message can cause an injury sufficient to confer standing. 

With standing decided, the court moved to interpreting the Act itself. The TCPA restricts the ability to use, in certain circumstances, an “ATDS,” defined as equipment with the capacity to (i) “store or produce telephone numbers to be called, using a random or sequential number generator” and (ii) dial those numbers. The issue in controversy: What does the phrase “using a random or sequential number generator” modify? The court examined four different possibilities.

First, “using a random or sequential number generator” could modify both “store” and “produce.” If so, to be an ATDS, the device must be capable of both storing or producing numbers using a random or sequential number generator. The court found this interpretation to be the most natural, given the sentence construction and grammar. The court recognized that there was an issue with whether a number generator “stores” telephone numbers, and how long such storage has to occur to be legally meaningful. Putting potential redundancy of this verb aside, however, the court found this interpretation reasonable, and considered the next construction.

Second, “using a random or sequential number generator” could describe only the telephone numbers themselves. If so, an ATDS includes only equipment that dials randomly or sequentially generated numbers—the interpretation adopted by the district court. However, to achieve this interpretation would require adding nonexistent language to the statute—that an ATDS was equipment that has the capacity to store or produce telephone numbers to be called “[by] using a random or sequential number generator”—which the court refused to do.

Third, there was the Ninth Circuit’s reading that the phrase modified only the word “produce.” An ATDS could then be equipment that can produce numbers randomly or sequentially and equipment that can simply store and dial numbers. This interpretation ran contrary to one point of universal agreement—that the phrase “telephone numbers to be called” is the object of both “store” and “produce.” The court concluded this reordering of the sentence to separate the two verbs was an inappropriate judicial rewrite.

Finally, the phrase “using a random or sequential number generator” could describe the manner in which the telephone numbers were to be called, regardless of how they were stored, produced or generated. This, the court ruled, would disregard the comma between “to be called” and “using a random or sequential number generator,” which demonstrates clear congressional intent that the qualifier apply to all antecedents rather than just the immediately preceding one.

The court concluded by holding that the first interpretation is the “best reading of a thorny statutory provision.” This reading is more consistent with the restrictive approaches adopted by the Third and Eleventh Circuits, than with the expansive reading of the Ninth Circuit. We anticipate that this decision will result in fewer TCPA cases being filed in the Seventh Circuit. Further, we think the Supreme Court will likely resolve this thorny issue of statutory interpretation that has resulted in a clear circuit split. 

1 Glasser v. Hilton Grand Vacations Co., No. 18-14499 (11th Cir. 2020); Evans v. Penn. Higher Educ. Assistance Agency, No. 18-14586 (11th Cir. 2020).
2 Gadelhak v. AT&T Svcs., Inc., No. 19-1738 (7th Cir. 2020).