On January 27, 2020, an Eleventh Circuit panel released a landmark ruling in Glasser v. Hilton Grand Vacations Company, LLC. The key issue in the case was how to interpret ambiguous language in the Telephone Consumer Protection Act’s (TCPA) definition of “automatic telephone dialing system” (ATDS or autodialer). In recent years, imprecise statutory phrasing and the Federal Communication Commission’s (FCC) liberal reading of the legislative history empowered plaintiffs to assert TCPA claims based on a wide array of calling systems. The Eleventh Circuit panel’s decision in Glasser rejects that trend, joins the D.C. Circuit in adopting a much narrower view of the TCPA’s scope, and establishes a clear circuit split with the Ninth Circuit.
The plaintiffs in the two cases on appeal allegedly received unsolicited calls on their cell phones to which they did not consent. Melanie Glasser filed a putative class action based on thirteen calls she received from Hilton Grand Vacations Company, LLC. The calls were made using a system that stores and dials non-randomly generated numbers and requires human intervention to initiate a call. The district court dismissed her claims after finding that the system Hilton used was not an autodialer.
Tabitha Evans received thirty-five calls from the Pennsylvania Higher Education Assistance Agency. In Evans’s case, the calls were placed by a system that automatically dialed individuals from a stored list of non-randomly generated numbers. The defendant appealed after the district court concluded that the system used to call Evans was an autodialer, even though it did not use a random or sequential number generator.
The Glasser Decision
The Eleventh Circuit majority undertook a careful grammatical analysis of the TCPA’s autodialer definition, which provides that 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 generator; and (B) to dial such numbers.” Key to interpreting the definition is the clause “using a random or sequential number generator” and whether that clause should be read to modify one or both of the verbs “store” and “produce” in the preceding clause.
The defendants argued that phrase had to be read as modifying both verbs, which would disqualify their equipment because both systems relied on preexisting call lists instead of randomly generated numbers. The plaintiffs contended that the phrase only modifies “produce,” and thus systems that store numbers can qualify as autodialers regardless of whether the numbers are randomly generated. In doing so, plaintiffs relied on the approach taken by the Ninth Circuit in Marks v. Crunch San Diego, LLC. In Marks, the court concluded that the statutory definition of autodialer also encompasses devices that “store telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.”
The Eleventh Circuit majority rejected that reading. Acknowledging that the statute lacks clarity and that each approach “runs into hurdles,” the court determined that the interpretation based on the clause modifying both verbs was the better option. The court cited conventional rules of grammar and statutory interpretation to explain its decision. After finding that both interpretations resulted in a degree of superfluity in language, the court opted for “the least superfluous approach—one that acknowledges some redundancy between store and produce but does not read a key clause (‘using a random or sequential number generator’) out of the statute.” The opinion also includes a thoughtful review of the legislative history, including a favorable discussion of the D.C. Circuit’s opinion in ACA Int’l v. FCC.
The decision separately addresses the issue of “human intervention.” Plaintiff Glasser argued, relying on Marks, that human involvement does not automatically disqualify equipment as an autodialer, if the human tasks are immaterial. But the Eleventh Circuit panel distinguished Marks as applying only to systems where the human operators just turn on the machine or initiate its functions. In Glasser’s case, the court found that the system used by Hilton “require[d] meaningful human interaction” because “[a]n employee’s choice initiates every call.” Even the dissenting opinion agreed that the relevant technologies had sufficient human intervention to fall outside the autodialer definition.
Glasser creates an undeniable circuit split with Marks on the role that the phrase “random or sequential number generator” plays in how expansively “automatic telephone dialing system” should be interpreted. Given the relatively defendant-friendly, though non-uniform, autodialer rulings of the Second Circuit in King v. Time Warner Cable Inc. and the Third Circuit in Dominguez v. Yahoo, Inc. the Supreme Court may find Glasser an appealing vehicle for certiorari. But the likelihood of a Glasser certiorari grant may be complicated by the Court’s decision to hear William P. Barr et al. v. American Association of Political Consultants, Inc. et al. this term, the outcome of which may invalidate the entire TCPA as unconstitutional under the First Amendment.
On the heels of the 2019 PDR Network, LLC v. Carlton Harris Chiropractic, Inc. decision, it should be another fascinating year for TCPA-watching at the Supreme Court.
This post was originally published on Hogan Lovells’ Global Media and Communications Watch blog.