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