It is no secret that the Courts are spit to high heaven on the proper definition of automatic telephone dialing system (“ATDS”) found within the Telephone Consumer Protection Act. (“TCPA.”)  And although the FCC is even now considering public comments on how to define the phrase following a remand by the D.C. Circuit Court of Appeals, the district courts continue to issue conflict definitions of this all-important statutory phrase.

One district where the meaning of ATDS was seemingly clear, however, was the Northern District of Illinois. Starting with the big Pinkus decision last year every court to look at the issue found that random or sequential number generation was required to constitute ATDS usage. Pinkus v. Sirius Xm Radio, 16 C 10858, 2018 U.S. Dist. LEXIS 125043 (N.D. Ill. July 26, 2018)(failure to allege random or sequential number generation fatal to TCPA complaint); Johnson v. Yahoo!, Inc., No. 14-cv-02028 (N.D. Ill. Nov. 29, 2018)(statutory definition of ATDS unambiguously required random or sequential number generation capacity). Folkerts v Seterus, Inc., Case No. 17 c 4171, 2019 U.S. Dist. Lexis 42347 (N.D. Ill. Mar. 15, 2019)(random or sequential number generation required for a system to qualify as an ATDS); Zeidel v. Nat’l Gas & Elec., LLC, 18-cv-06792, 2019 U.S. Dist. LEXIS 83988 (N.D. Ill. May 17, 2019).

Well all of that clarity was shattered today when the Hon. Charles P. Kocoras issued an order denying summary judgment to a TCPA defendant after concluding that random and sequential number generation is not necessary after all.

In Espejo v. Santander, Case No. 11 c 8987, Dkt. No. 250 (N.D. Ill. June 12 2019)— the Defendant took a second crack at a summary judgment motion that had been denied years before. In the first order denying defendant judgment the court had noted the potential future impact of the ACA Int’l opinion which, at the time, had yet to be decided. So the Court allowed Santander leave to re-assert its motion after the D.C. Circuit Court of Appeal completed its review of the FCC’s 2015 Omnibus ruling.

In ruling on the renewed motion the Court does an excellent job of addressing the key issues for analysis. First, the Court weighs whether or not ACA Int’l set aside all of the FCC’s earlier ATDS rulings—i.e. the 2003 and 2008 rulings expanding the TCPA to cover predictive dialers—or merely the 2015 TCPA Omnibus ruling, which had seemingly required random or sequential number generation as the hallmark of an ATDS but also expansively concluded that any device that could be modified to have that functionality in the future constituted an autodialer today. After surveying the case law and noting that both circuit court of appeal decisions to address issue and a “marginal majority” of district courts doing so all conclude that ACA Int’l set aside the 2003 and 2008 predictive dialer rulings—sorry Morgan & Morgan—the Espejo court was inclined to do the same.

With the FCC’s defunct rulings out of the way, the Court was free to interpret the statute as written. At this point the case appears to be a sure win for the defense—again the Northern District of Illinois has already held four times that random or sequential number generation is required under the statute. But the Espejo court departs from the analyze of its brethren in the Northern District of Illinois and concludes that the TCPA is, in fact, ambiguous. In relying on ACA Int’l’s grant of deference to the FCC to adopt “either” approach the court concludes that the TCPA can be “reasonably” read to cover devices that only call randomly or sequentially and devices that store numbers to be dialed. Thus, following Marks, it concludes that the legislative history and purpose of the statute must be considered.

Looking at the overall structure of the statute—while ignoring the key words of the ATDS definition itself—the Court generally concludes that the statute was intended to apply broadly to prevent unwanted phone calls. The Court also notes that a defense for “express consent” would not make much sense if only random-fire dialers were covered (of course it does) and also notes that there would be no room for a distinction for “willful” violations if only random-fired dials were used (again, that seems unture.)

On these grounds, and likely with a healthy dose of disdain for robocalls more broadly, the Court follows Marks and concludes that the TCPA covers all dialers that call automatically in that they dial from a list without meaningful human intervention.

Espejo perfectly demonstrates just how confused courts remain over the proper contours of the TCPA. Even in a district where the ATDS definition seemed solid an outlier opinion has cropped up. And this is true despite FCC Commissioner O’Reilly’s recent speech questioning the reasonableness of the Marks definition and decrying the “patchwork” approach district courts have taken in addressing the ATDS definition. All of this, of course, demonstrates why the TCPA is unlikely to survive appropriate First Amendment analysis—how can a statute validly regulate speech when no one really knows what the statute covers?

Still Espejo’s recognition that the “majority” of courts have concluded the 2003 and 2008 orders are defunct is helpful for Defendants who continue to face contrary arguments, even as the decisions pile up on this point.