Decision in Glasser puts Eleventh Circuit Squarely at Odds with Ninth on TCPA’s Definition of Auto-Dialer.

In Glasser v. Hilton Grand Vacations Company, LLC., No. 18-1449 (2020), the Eleventh Circuit ruled that the TCPA’s definition of an auto-dialer requires random or sequential number generation. This decision aligns with the Third Circuit and certain district courts that are split with the Ninth. In Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (2018), the Ninth Circuit broadly construed the definition to include equipment that dials automatically from a stored list. Glasser adopts a significantly narrower definition.

The TCPA defines an auto-dialer as “equipment which as 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.” 47 U.S.C. § 227(a)(1). At issue is whether the clause “using a random or sequential number generator” modifies both verbs (“store” and “produce”) or only the second one (“produce”). Marks decided the latter interpretation to be correct, adopting an expansive reading that would include equipment that can dial automatically from a list of numbers but not “produce” such numbers. The Eleventh Circuit disagreed.

The Glasser court, in addition to discussing the legislative history of the statute and its intent, relies heavily on grammar, stating the conventional rule that “when two conjoined verbs . . . share a direct object . . . a modifier following that object . . . customarily modifies both verbs.” In addition, the placement of the comma between the two phrases supports the conclusion that the “clause modifies both ‘store’ and ‘produce.’” To reach the expansive interpretation adopted by Marks, the court says, would require the statute undergo “surgery.”

The Glasser decision is expected to significantly limit auto-dialer litigation in the Eleventh Circuit by reducing the types of calling equipment that require a form of prior consent. It may also have an impact on the forthcoming Seventh Circuit Decision in Gadelhak v. AT&T Services, Inc., which will address the same question.

For more information, please contact Paul Grammatico with Katten at (213) 443-9017 or via email at paul.grammatico@katten.com.