On June 14, an Eastern District of North Carolina judge issued the first opinion within the Fourth Circuit addressing the impact of ACA International on the definition of an automatic telephone dialing system, or “ATDS.” In Snow v. GE, Judge Flanagan dismissed plaintiff Marian Snow’s complaint because she failed to allege facts “permitting an inference that the text messages plaintiff received were sent using equipment that stores or produces numbers to be called ‘using a random or sequential number generator.’”
The Court expressly held that ACA International invalidated the prior FCC interpretations of the definition of an ATDS. The Court also declined to follow the Ninth Circuit’s approach in Marks v. Crunch San Diego, LLC. Instead the Court looked to the plain language of the statute and found “the statute unambiguously incorporates a ‘random or sequential number generator’ into the definition of an ATDS.”
Snow alleged she received multiple text messages from the defendants on her cellular telephone. She alleged she did not provide prior express consent to the defendants and that the messages were the result of a reassigned telephone number. Snow stated the messages were sent using “one or more of the forms of hardware, software, or equipment that the FCC characterizes as an automatic telephone dialing system” and that the messages were sent to her “by an automated means that did not require human intervention.” The Court found these allegations were not sufficient to overcome the defendants’ motions to dismiss. Specifically, Snow had not alleged that the defendants used equipment that stores or produces numbers “using a random or sequential number generator.”
The Court’s focus on random or sequential number generation when defining an ATDS is a win for TCPA defendants, especially those facing TCPA lawsuits in the Fourth Circuit.
Troutman Sanders will continue to monitor and report as the courts continue to interpret the definition of an ATDS under the TCPA.