The Northern District of Iowa has given us TCPA practitioners an excellent piece of authority to show that Congress meant what it wrote when it defined an “automatic telephone dialing system.” The court, in Harbach v. USAA Federal Savings Bank, held that for a plaintiff to prevail in proving that she was called with an autodialer, she must prove that the dialing equipment can in fact store or produce phone numbers “using a random or sequential number generator.”
In so doing, the court took the Ninth Circuit’s sweeping decision in Marks, which we covered here, head on, and explicitly rejected it. Without mincing words, this court (which is in the 8th Circuit) ruled that it “disagrees with the Ninth Circuit Court of Appeals’ interpretation that a device, to be considered an ATDS, must be capable of ‘dial[ing] [numbers generated using a random or sequential number generator] automatically.’ Marks v. Crunch SanDiego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018). As the D.C. Circuit recognized, to place a telephone call, numbers must necessarily ‘be called in some order-either in a random or some other sequence.’ ACA Int’l, 885 F.3d at 702 (emphasis in original).”
The court also sided with opinions like Pinkus and Roark in holding that the D.C. Circuit, in ACA International, “necessarily invalidated the FCC’s 2003 Order and 2008 Declaratory Ruling insofar as the 2003 Order and 2008 Declaratory Ruling also define a predictive dialer as an ATDS, even when the predictive dialer lacks the capacity to generate phone numbers randomly or sequentially and to then dial them.” Having cleaned those erroneous rulings off the books, the court in Harbach proceeded to interpret the TCPA’s definition of an ATDS anew, and, as noted above, held that Congress clearly drafted the definition of ATDS to require equipment that “is capable of randomly or sequentially producing, or randomly or sequentially storing telephone numbers.”
Harbach is worthy of your close consideration, as it provides an excellent roadmap for guarding against an expansive construction of the TCPA’s definition of an ATDS.
By Joe Bowser
8200 Greensboro Drive, Suite 820
McLean, VA 22102