Gadelhak v. AT&T Services, Inc.

Whether a telephone dialing or text messaging system that mass dials telephone numbers from a list is an autodialer under the Telephone Consumer Protection Act
  • Supreme Court to Decide Scope of Robocall Ban: Just days after upholding the federal robocall ban against a First Amendment challenge, the U.S. Supreme Court has agreed to decide the scope of the ban in a new case, Duguid v. Facebook. Following the D.C. Circuit’s invalidation of the FCC’s definition of an “autodialer”—the technology companies use to automatically dial vast numbers of consumers— federal appeals courts have split on how to interpret the term. Telemarketers argue that an autodialer must generate random or sequential numbers, while consumers and consumer groups like EPIC maintain that the law bans systems that automatically call numbers from lists. In Gadelhak v. AT&T, EPIC argued that adopting the telemarketers’ autodialer definition “would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete.” EPIC routinely files amicus briefs in cases on the Telephone Consumer Protection Act. (Jul. 9, 2020)
  • EPIC, Consumer Groups Call for Review of Robocall Ruling: EPIC joined the National Consumer Law Center and other consumer groups in an amicus brief supporting review of recent decision that limits consumer robocall protections. In Gadelhak v. AT&T Services, the Seventh Circuit concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision deepened a split among federal appeals courts over the scope of federal robocall protections. EPIC and NCLC also filed an amicus brief during the court's original consideration of the case. The EPIC brief explained that allowing telemarketers to auto-dial consumers "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA. (Mar. 12, 2020)
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    Just days after upholding the federal robocall ban against a First Amendment challenge, the U.S. Supreme Court has agreed to decide the scope of the ban in a new case, Duguid v. Facebook. Following the D.C. Circuit’s invalidation of the FCC’s definition of an “autodialer”—the technology companies use to automatically dial vast numbers of consumers— federal appeals courts have split on how to interpret the term. Telemarketers argue that an autodialer must generate random or sequential numbers, while consumers and consumer groups like EPIC maintain that the law bans systems that automatically call numbers from lists. In Gadelhak v. AT&T, EPIC argued that adopting the telemarketers’ autodialer definition “would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete.” EPIC routinely files amicus briefs in cases on the Telephone Consumer Protection Act.
  • Supreme Court Hears Oral Argument in Robocall Ban Case » (May. 6, 2020)
    Earlier today, the U.S. Supreme Court heard oral argument in Barr v. American Association of Political Consultants. The argument was livestreamed, with EPIC staff providing commentary on Twitter. The case asks whether an exemption to the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls, is constitutional, and, if not, whether the exemption should be severed or the whole law struck down. EPIC defended the TCPA in an amicus brief. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained that cell phone adoption has made "the harm caused by unwanted automated calls" greater than when the robocall ban was enacted in 1991. EPIC said that "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.
  • EPIC, Consumer Groups Call for Review of Robocall Ruling » (Mar. 12, 2020)
    EPIC joined the National Consumer Law Center and other consumer groups in an amicus brief supporting review of recent decision that limits consumer robocall protections. In Gadelhak v. AT&T Services, the Seventh Circuit concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision deepened a split among federal appeals courts over the scope of federal robocall protections. EPIC and NCLC also filed an amicus brief during the court's original consideration of the case. The EPIC brief explained that allowing telemarketers to auto-dial consumers "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • EPIC to Supreme Court: Robocall Ban is Constitutional » (Mar. 2, 2020)
    In an amicus brief for the U.S. Supreme Court, EPIC today defended the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained in Barr v. American Association of Political Consultants that "the harm caused by unwanted automated calls" is more acute than when the robocall ban was enacted in 1991. EPIC said "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." Senator Markey, Representative Eshoo, and more than a dozen members of Congress also filed an amicus brief in support of the consumer privacy law. EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.
  • Federal Appeals Court Rules Consumers Can Sue for Automated Texts—But Only If Calls Are Random » (Feb. 19, 2020)
    The Seventh Circuit has concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision in Gadelhak v. AT&T Services deepens a split among federal appeals courts over the scope of federal robocall protections. EPIC and the National Consumer Law Center filed an amicus brief in the case, arguing that an autodialer need only dial numbers from a list, such as a customer contact database. EPIC and the NCLC explained that allowing telemarketers to robocall consumers from a list "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." The EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • Supreme Court to Review Constitutionality of Federal Robocall Ban » (Jan. 11, 2020)
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  • House Passes Bill to Combat Robocalls » (Jul. 25, 2019)
    In a 429-3 vote, the House passed a bill to combat the onslaught of robocalls. The Stopping Bad Robocalls Act would increase the fines for illegal robocalls, require phone companies to block robocalls by default, require more businesses to obtain consumer consent before calling, and much more. The Act comes two months after the Senate passed a similar bill—the Traced Act—with near unanimous support. Many criticized the Senate's bill for not going far enough. EPIC joined a coalition of consumer groups that urged members of Congress to support the House bill. EPIC has long advocated for stronger regulations surrounding robocalls. EPIC provided expert analysis to Congress, submitted numerous comments, and filed multiple amicus briefs emphasizing the need to limit robocalls.
  • Ninth Circuit Strikes Down Debt-Collection Exception to Robocall Ban » (Jul. 9, 2019)
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    EPIC and the National Consumer Law Center have filed an amicus brief in a case concerning the scope of the federal law, the Telephone Consumer Protection Act, that protects consumers against robocalls. In Gadelhak v. AT&T Services, EPIC and NCLC argued that list-based systems are included among the law's definition of "autodialers." To do otherwise, the brief explained, "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC and NCLC further explained that the "mass texting from a list, such as the system used by AT&T in this case, is precisely the type of technology the TCPA sought to restrict." The amici warned that a narrow interpretation of the law "would accelerate the rising levels of robocalls and texts." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • Congress, FTC Take Action Against Robocallers » (Jun. 27, 2019)
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  • FCC Affirms Robocall Blocking By Default to Protect Consumers » (Jun. 7, 2019)
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  • Senate Examines "Do Not Call" Law » (May. 19, 2016)
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  • Supreme Court Rules Settlement Offers Can't Moot Consumer Class Actions » (Jan. 20, 2016)
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  • FCC Implements Strict Rules to Halt Unwanted Telemarketing » (Jun. 19, 2015)
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  • Senators Urges FCC to Protect Consumers Against Unsolicited Calls » (Jun. 9, 2015)
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  • FCC Issues Stronger Telemarketing Rules to Protect Consumers » (Jun. 12, 2012)
    The Federal Communications Commission's final rule amending the Telephone Consumer Protection Act of 1991 (TCPA) regulations is now in effect. The rule requires "(1)prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines; (2) allow[s] consumers to opt out of future robocalls during a robocall; (3) limit[s] permissible abandoned calls on a per-calling campaign basis, in order to discourage intrusive calling campaigns; and (4) exempts prerecorded calls to residential lines made by health care-related entities governed by the Health Insurance Portability and Accountability Act of 1996." EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. For more information, see EPIC: Telemarketing and the Telephone Consumer Protection Act (TCPA).

Summary

This case concerns the definition of an “automated telephone dialing system”—sometimes called an “autodialer” or an “ATDS”—under the law that protects the public from robocalls, the Telephone Consumer Protection Act. Ali Gadelhak brought a proposed class action against AT&T after AT&T sent Gadelhak five unsolicited automated text messages without his consent. AT&T claimed that its text messaging system was not an autodialer and thus was not regulated by the anti-robocall law because the numbers it targeted were not generated by a random or sequential number generator. Gadelhak argued that AT&T’s text messaging system was an autodialer because the statutory definition of autodialer includes systems that dial from a pre-loaded list of numbers. The District Court sided with AT&T. Gadelhak appealed.

Background

Factual Background

AT&T uses a text messaging tool to send surveys to its customers. A computer generates a list of customers who have recently interacted with service representatives. The system then removes non-cell phone numbers, selects one phone number associated with each AT&T account, and sends the modified list to an external vendor. The vendor stores the list in an internal database and texts pre-prepared surveys to select phone numbers from the list. Gadelhak received five such text messages, even though he is not a customer of AT&T or any of its affiliates.

Legal Background

Telephone Consumer Protection Act

The Telephone Consumer Protection Act (“TCPA”) was enacted in 1991 to protect consumers from unwanted automated and prerecorded calls. It bans calls made using “any automatic telephone dialing system or an artificial or prerecorded voice” without meaningful consumer consent. The law defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential generator; and (B) to dial such numbers.” The parties in this case—and many other cases around the country—have noted an ambiguity in whether “using a random or sequential generator” modifies only “produce” or both “store or produce.”

When enacting the TCPA, Congress knew that new technologies would emerge over time. Congress accordingly gave the FCC the authority to craft exemptions and adopt new rules. The FCC has utilized this authority three times: in 2003, 2008, and 2015. Each time, the FCC interpreted the TCPA in a way that provided greater privacy protections for consumers.

ACA International v. FCC

In ACA International, the D.C. Circuit invalidated the portion of the 2015 FCC Order that refined the definition of autodialer. The D.C. Circuit held that the FCC’s interpretation of the TCPA was unreasonably expansive and did not give a clear and consistent explanation of whether a device needed to generate random or sequential numbers. Following ACA International, courts have disagreed about whether ACA International only invalidated the 2015 FCC Order or whether the decision overturned the 2003 and 2008 FCC orders as well. Courts that find that ACA International invalidated the earlier FCC orders look to the text of the statute to determine the definition of an autodialer, with no guidance from the FCC.

The Second and Third Circuits, for example, have held that ACA International only invalidated the 2015 FCC Order. In King v. Time Warner Cable, a case concerning 153 calls made by Time Warner without consumer consent, the Second Circuit claimed that ACA International “removed any deference we might owe to the views the FCC expressed in [the 2015 Order].” Similarly, in Dominguez v. Yahoo, a case regarding 27,800 text messages sent by Yahoo over seventeen months, the Third Circuit defined “autodialer as we did prior to the issuance of [the 2015 FCC Order].” In contrast, in Marks v. Crunch San Diego, the Ninth Circuit found that ACA International overruled all FCC orders relating to the definition of autodialer and proceeded to define autodialer with no guidance from the FCC.

Procedural History

United States District Court for the Northern District of Illinois

Gadelhak brought a class action lawsuit against AT&T, alleging that the automated text messages sent by AT&T to individuals, such as Gadelhak, without their consent, violated the TCPA. AT&T responded with a motion for summary judgement, claiming that the texts Gadelhak received were not actionable under the TCPA because they were not sent using an autodialer. First, AT&T argued that ACA International invalidated all prior FCC orders regarding the definition of an autodialer and that the Court must interpret the TCPA based on its plain meaning. Second, AT&T argued that dialing from a list is not random or sequential and thus, AT&T’s system does not use an autodialer. Gadelhak responded that ACA International only invalidated the 2015 FCC order and regardless, that list-based dialing systems are autodialers under the plain meaning of the TCPA.

The District Court agreed with AT&T that ACA International invalidated all prior FCC orders and that list-based dialing systems are not autodialers under the plain meaning of the TCPA. Gadelhak appealed.

United States Court of Appeals for the Seventh Circuit

On appeal, Gadelhak seeks a reversal of the District Court’s decision. The questions presented are: (1) whether ACA International overturned all of the FCC orders or merely just the 2015 order, and (2) whether list-based dialing systems meet the statutory definition of an autodialer.

EPIC's Interest

EPIC has a strong interest in upholding the TCPA’s privacy protections for cell phone users. EPIC contributed to the formation of the TCPA and has since worked to ensure that telephone users are protected from invasive calling practices. EPIC has submitted numerous comments to the FCC and FTC concerning the implementation of the TCPA. In June 2018, EPIC submitted comments to the FCC regarding the Commission’s proceedings after ACA International. In the comment, EPIC urged the FCC to define “called party” under the TCPA. EPIC also encouraged the FCC to establish a three-pronged way for callers to “facilitate the revocation of consent by called parties:” (1) let parties know they have the right to revoke consent, (2) give consumers an easy way to revoke consent, (3) quickly follow through with the revocation of consent.

EPIC has also provided expert analysis to Congress on emerging consumer privacy issues concerning the misuse of telephone numbers. In 2004, EPIC testified before the US Senate Committee on Commerce, Science, and Transportation about the privacy issues raised by a proposed wireless directory for customers of wireless telephone services. EPIC argued for a consumer-friendly standard for enrollment, which requires an opt-in system that ensures adequate notice and requires affirmative consent.

Additionally, EPIC has filed many “friend of the court” briefs in important TCPA cases. In PDR Network v. Carlton & Harris Chiropractic, EPIC urged the Supreme Court not to give TCPA defendants the right to challenge FCC rules outside the agency process and the appeal procedure Congress established. In Gallion v. Charter Communications, EPIC argued that the TCPA’s purpose was to protect consumers against invasive business practices and does not violate the First Amendment. In ACA International v. FCC, EPIC and other consumer privacy organizations urged the FCC to protect consumers from unwanted and invasive robocalls made using an autodialer and prerecorded voice, in direct violation of the TCPA. Further, EPIC argued that companies, not consumers, should bear the burden of complying with the TCPA because the TCPA was enacted as a consumer-centric statute.

Legal Documents

U.S. Court of Appeals for the Seventh Circuit (No. 19-1738)

U.S. District Court for the Northern District of Illinois (No. 17-CV-01559)

Resources

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