Advertising Law Blog

In Glasser v. Hilton Grand Vacations (decided by the Eleventh Circuit on January 27, 2020), the federal Court of Appeals covering Florida, Georgia and Alabama took a restrictive view as to what qualifies as an autodialing device under the Telephone Consumer Protection Act (TCPA).

After two women separately received over a dozen unsolicited phone calls, some about repaying a debt, others about buying vacation properties, they sued the companies that called them for violating the TCPA. Both women alleged that the companies placed the calls through autodialing devices, which the TCPA regulates and restricts.

The companies admitted that they called the plaintiffs, and admitted that they used sophisticated telephone equipment to make the calls. But they disputed that their systems counted as autodialing devices under the TCPA.

Section 227(a)(1) of the TCPA defines an autodialing device (using the more formal terms “automatic telephone dialing system”) as equipment which (a) has the capacity to store or produce telephone numbers using a random or sequential number generator; and (b) dials such numbers.

The Eleventh Circuit determined that, because neither phone system used randomly or sequentially generated numbers and the phone system in one of the two cases further required human intervention, the calling equipment was not an autodialing device, and therefore the TCPA lawsuits were properly dismissed.

The Eleventh Circuit went a bit further, holding that even if dialing equipment fits the TCPA’s definition, a violation will not be found if there is “human intervention,” which in this case were employees who had to press an onscreen buttoned labeled “make a call” before a call was placed.

The rationale behind the decision was that the text of the TCPA, enacted in 1991, is clear on the autodialing device definition, but courts have been applying a too-lenient definition of the term after the Federal Communications Commission (FCC) issued improper interpretive orders in 2003 and 2008. The Eleventh Circuit criticized the FCC for “talking out of both sides of its mouth.”

Under the Eleventh Circuit’s ruling, “telemarketers who dial lists of telephone numbers have three options. They may obtain consumers’ consent to robocalls. They may connect each potential customer with a human representative. Or they may face liability under the TCPA. That’s a fair balancing of commercial and consumer interests.”

While the ruling is a victory for telemarketers and other calling-based businesses, the win is an equivocal one. This latest ruling is not the law of the United States. In fact, the ruling contradicts that of the Ninth Circuit, which covers mush of the western portion of the nation. In the Ninth Circuit, courts place an emphasis on the dialing equipment’s “capacity” to store and dial telephone numbers.

TAKEAWAY: Businesses should work with calling software and equipment providers to fit within the parameters of the Eleventh Circuit’s Glasser decision.   Although courts will not follow it uniformly, the trend seems to be headed in the direction of a stricter definition of what constitutes an autodialing device. Because TCPA lawsuits are so prevalent, an experienced telemarketing attorney should be contacted before embarking on a large-scale calling program in order to minimize the risk of being sued.