In their ongoing efforts to keep the largest gravy train in modern legal history rolling, plaintiffs’ lawyers are working hard to find more companies to hit with spurious violations of the Telephone Consumer Protection Act ("TCPA") by grafting thirty-year-old language on to twenty-first century technology.  Now, the Seventh Circuit Court of Appeals has joined a growing number of U.S. appellate courts in saying, "not so fast."

The Seventh Circuit recently issued a unanimous decision in Gadelhak v. AT&T Services, No. 19-1738, concluding that that the TCPA does not apply to calls or text messages that are automatically dialed from a stored database of phone numbers.  The Seventh Circuit’s decision adopts a narrow interpretation of what constitutes an "autodialer" or "automatic telephone dialing system" (ATDS) under the TCPA.  In a ruling largely consistent with others from the Third, Eleventh and D.C. Circuits, the Seventh Circuit’s decision rejected the expansive definition adopted by the Ninth Circuit in Marks v. Crunch San Diego and further deepened the circuit split over the type of dialing systems that are subject to potential TCPA liability.

The TCPA prohibits, among other things, the use of an autodialer to place calls or text messages to mobile numbers without the recipient’s prior express consent. Drafted in the early 1990s to combat robocalls that blasted messages to randomly-generated telephone numbers, the TCPA defined an autodialer as equipment that has the capacity to "store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers."  Because the TCPA provides for uncapped statutory damages ranging from $500 to $1,500 per violation, plaintiffs’ lawyers have increasingly used this thorny statutory provision to bring specious claims that often pose an existential threat to companies.    

Acknowledging that there are at least four different ways to read the TCPA’s autodialer definition, the Seventh Circuit noted that the language used in the TCPA’s definition "is enough to make a grammarian throw down her pen."  Nonetheless, Judge Amy C. Barrett wrote for panel that the "most natural" reading of the TCPA’s autodialer definition was that the words "using a random or sequential number generator" modifies both "store" and "produce."  In other words, the dialing system used by AT&T – which neither stores nor produces numbers using a random or sequential number generator; but instead only dials numbers stored in a customer database – is not an autodialer as defined by the TCPA.  The alternative interpretations advanced by the plaintiffs’ lawyers, the Seventh Circuit noted, were "ungrammatical" and would create liability for millions of individuals for every text message sent from an iPhone and other mobile devices capable of storing telephone numbers and automatically sending messages through auto-response features.

The Seventh Circuit’s common-sense decision will curb the ability of plaintiffs’ lawyers to broaden the scope of TCPA claims to include the use of dialing systems that do not fall within the narrow statutory definition espoused by a growing number of circuit courts.  While this decision deals another significant blow to contrived TCPA lawsuits, courts are struggling to apply the 1991 statute to modern technologies.  The Seventh Circuit’s decision increases the likelihood that the Supreme Court, the FCC or Congress will step in to resolve the meaning of the TCPA’s autodialer definition.