One of the most oft-cited circuit court decisions, if not the most oft-cited, is Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), in which the newly formed Eleventh Circuit adopted as binding precedent all prior precedent of the former Fifth Circuit, including many landmark Civil Rights rulings. The case continues to be of major importance 38 years later, from continued application of Civil Rights rulings to routine matters of circuit procedure.

Marks v. Crunch does not appear destined for the same fate, as two more district courts in Florida and Texas dismissed TCPA cases for lack of a random or sequential number generator. See Johnson v. Capital One Servs., No. 18-cv-62058, 2019 U.S. Dist. LEXIS 159633 (S.D. Fla. Sept. 16, 2019); Reed v. Quicken Loans, No. 3:18-cv-3377, 2019 U.S. Dist. LEXIS 159935 (N.D. Tex. Sept. 3, 2019).

In Johnson, one of the defendant’s agents told the plaintiff on a recorded conversation that the defendant contacted her via an “auto dialer.” But the Southern District of Florida granted summary judgment in favor of the defendant, because a stray statement on use of an “auto dialer” does not prove that the defendant’s phone system had the capacity to generate random or sequential numbers and then dial them. The court also held that even if a allegations of a “click,” “pause,” or “dead air” are enough to survive a motion to dismiss, they are not enough to survive summary judgment.

Reed is significant in that it is the second Texas federal court in a few months to hold that a random or sequential number generator is required for a system to be an ATDS. But unlike Adams, the Johnson court actually granted the motion to dismiss, as the plaintiff relied solely on legal conclusions rather than allegations of fact. The court thus reaffirmed both the statutory definition and the post-Iqbal need to allege actual facts, not just bare legal conclusions to survive a motion to dismiss.

There you have it, folks. Two more district courts reject Marks a year after it was decided and apply the plain, unambiguous statutory definition of an ATDS. As always, we will continue monitoring ATDS-related developments, and keep you informed.