In what has become a common theme of late another court in the Northern District of Illinois has held that a dialer must operate randomly or sequentially to qualify as an ATDS under the TCPA. This marks the seventh time a court within that district has so held.

The latest decision is in Smith v. Premier Dermatology, No. 17 C 3712, 2019 U.S. Dist. LEXIS 152887 (N.D. Ill. Sept. 9, 2019). The reasoning follows a familiar path.

First, the Court addresses the FCC’s 2003 and 2008 predictive dialer rulings and determines that they were set aside by ACA Int’l.

The Court then moves on to interpreting the statutory language. While recognizing a certain “allure” to Marks, the court nonetheless concludes that the Ninth Circuit’s analysis is inconsistent with the plain text of the statute.

In the Smith court’s view the statute means what it says:

the plain text of the statutory definition provides that an ATDS is a device that (1) stores or produces telephone numbers that (2) were randomly or sequentially generated and (3) dials them automatically.

Notably the Court concludes the statutory language is “not ambiguous” such that there is no reason to consider the context or the structure of the statutory scheme.

The Court also rejects the Plaintiff’s argument that the system has the “capacity” to dial randomly because, in essence, it is a software-enabled dialing device capable of being reprogrammed. It is the present capacity of the system that matters according to the Smith court.

While this latest decision is helpful for Defendants—and indeed does away with a number of pesky arguments TCPA plaintiffs enjoy making regarding the meaning of ATDS—it is small potatoes compared to the coming ruling from the Seventh Circuit in Gadelhak. There the Seventh Circuit is set to definitively answer whether an ATDS must dial randomly or sequentially. And considering that a near majority of the entire nation’s “statutory approach” TCPA cases arise out of the N.D. Ill., losing Gadelhak would be a real problem for Defendants. More to come on that.