Many, if not most, Telephone Consumer Protection Act (TCPA) cases hinge on whether the defendant’s alleged conduct involved an automatic telephone dialing system (ATDS). Under 47 U.S.C. § 227, an ATDS is defined as “equipment which has 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.”
A recent U.S. District Court for the Eastern District of Pennsylvania opinion adopted a definition of ATDS that is significant and particularly beneficial for TCPA defendants. In Dominguez v. Yahoo!, Inc., District Judge Baylson held that the dialing system used by defendant Yahoo!, Inc., which used a queuing program to send text messages to stored cellular telephone numbers automatically, was not an ATDS because it did not have the capacity to “use a random or sequential number generator to store or produce telephone numbers and then send a text message to those numbers.” As a result, the defendant’s motion for summary judgment was granted in Dominguez.
Judge Baylson found unconvincing the plaintiff’s assertion that the dialing system was an ATDS because it “sequentially” … “dialed from a list of telephone numbers”, largely because this language does not appear in the TCPA and was supplemented by the plaintiff’s expert. Rather, the Court found Judge Lasnik’s definition of a sequential number generator to be more persuasive, that being a device that dials in the following manner: “(111) 111-1111, (111) 111-1112, and so on”(citing Gragg v. Orange Cab Co., Inc., No. C12-0576RSL, 2014 WL 494862, at *3 (W.D. Wash. Feb. 7, 2014). In other words, the dialer must actually generate numbers to be an ATDS. In reaching their decisions, both Dominquez and Gragg focused on the present capacity of the dialer equipment, rather than the potential capacity of the dialer equipment, to generate numbers with certain programming or modifications.