Wed, 08/21/2019 - 14:53
Western District of Michigan Court Decision Produces Intrastate Split on What Constitutes an ATDS
A recent decision by the Western District of Michigan on what constitutes an Automatic Telephone Dialing System (ATDS) under the Telephone Consumer Protection Act (TCPA) stands in contrast to earlier decisions by the Eastern District of Michigan, creating a situation where separate jurisdictions within the same state have notably different definitions of what an ATDS is.
The Western District case, Allan v. Pennsylvania Higher Education Assistance Agency, No. 2:14-CV-54, 2019 WL 3890214 (W.D. Mich. Aug. 19, 2019), centers on 353 calls placed to two plaintiff’s cell phones by a predictive dialing telephone system that dialed numbers from a list created according to specific selection criteria. The court cited the Ninth Circuit’s expansive definition of what constitutes an ATDS from its 2018 ruling in Marks v. Crunch San Diego, LLC, concluding that “the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.”
This broad definition of an ATDS contradicts two recent decisions from the opposite end of the state. In Gary v. TrueBlue, Inc., Case No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018) and Keyes v. Ocwen Loan Servicing, No. 17-cv-11492, 2018 U.S. Dist. LEXIS 138445 (E.D. Mich. Aug. 16, 2018), the Eastern District of Michigan followed the precedent of the Third Circuit’s decision in Dominguez v. Yahoo, finding that the key determining factor for what constitutes an ATDS is not the capacity to call telephone numbers stored in a list but, rather, that the system is capable of generating numbers randomly or sequentially.
One must note that, in its Allan decision, the Western District found that the defendant violated the TCPA but declined to award treble damages because, “at the time that [Defendant] acted in violation of the statute, the FCC had equivocated on whether the type of system [Defendant] used qualified as an ATDS.”
However, the key takeaway from this decision is that the competing precedents of the Marks and Dominguez decisions continue to influence very different interpretations of what constitutes an ATDS under the TCPA, varying on a jurisdictional basis—even within a single state.