Last week, in Morgan v. Adventist Health Systems/Sunbelt, Inc., et al., the United States District Court for the Middle District of Florida joined a number of courts post-ACA International in holding that a telephony system must have the present capacity to randomly or sequentially generate telephone numbers in order to qualify as an automatic telephone dialing system for the purposes of the Telephone Consumer Protection Act. This is a vitally important issue for TCPA defendants, as plaintiffs continue to argue for statutory interpretations evaluating devices’ latent capacity, without regard for how those devices actually are used to place calls.

In Morgan, defendant Adventist Health System/Sunbelt, Inc. received express consent to dial the cell phone number at issue from the number’s prior subscriber. The number was re-assigned to plaintiff Angela Morgan, then defendant Medical Services, Inc. and American Credit Services, Inc. collectively placed four calls to the number at issue seeking to reach the prior subscriber. As a result of these four calls, Morgan filed suit under the TCPA.

In their motions for summary judgment, defendants argue they reasonably relied on the express consent granted by the number’s prior subscriber; however, the Court rejected this argument, and noted that ACA Int’l did not reach whether the Federal Communications Commission’s reasonable reliance approach was proper and did not adopt a reasonable reliance standard. As such, the Court denied defendants’ motions for summary judgment on this point.

Next, defendants argued that the telephone systems at issue do not qualify as an ATDS, as they do not randomly or sequentially generate numbers to be called. Morgan argued that “the clause ‘using a random or sequential number generator’ modifies only the term ‘produce’ and not the word ‘store[.]’” The Court rejected Morgan’s argument by stating that such a reading “would be a strained and unnatural reading of the plain language of the statute.”

Relying on ACA Int’l, the Court held it was not bound by the FCC’s 2015, 2008 or 2003 ATDS definition and agreed with the “majority of the courts in this District that ACA International, in invalidating the 2015 FCC definition of an ATDS, also necessarily vacated the prior definitions that the 2015 definition reaffirmed.”

The Court explained that after reviewing the “plain language of the statute itself,” it determined “a system must have the present ability to randomly or sequentially generate telephone numbers to be an ATDS within the meaning of the TCPA.”

The Court noted that “[t]here is no dispute that the equipment used by defendants does not randomly or sequentially generate the numbers to be called, but rather dials from a predetermined list of numbers.” The Court granted summary judgment in favor of the defendants, as Morgan did not contradict defendants’ evidence showing that the relevant systems do not have the present capacity to randomly or sequentially generate numbers.