and that limiting the ATDS definition in such a manner was consistent with basic rules of statutory construction .
The Court also considered the context and purpose of the TCPA and concluded limiting the TCPA to random-fire dialers was most consistent with the intent of Congress in enacting the statute .
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One judge on the panel dissented , however , pointing out that the majority ’ s interpretation would render certain phrases within the TCPA ’ s ATDS definition superfluous and also flies in the face of the Supreme Court ’ s apparent holding in Duguid .
On the latter piece , the Soliman panel reasoned the Supreme Court ’ s holding as limited to the requirement an ROSNG must be used , but the Supremes did not hold a system can be an ATDS merely because it uses an ROSNG merely to “ store ” telephone numbers . This interpretation seems at odds with FN7 of Duguid , but the Soliman panel reasoned the footnote did not hold much weight in context :
“ This footnote , however , merely notes that one could employ an autodialer to both ‘ store ’ and ‘ produce ’ telephone numbers , as two separate functions . It says nothing about whether the numbers on the preproduced list were randomly generated in the first place . And it does not mean that if the telephone numbers were not originally created by a random number generator , then the use of a random number generator to pick the pre-existing number is sufficient to meet the definition of an ATDS . When read in the context of the entire opinion , footnote 7 does not support Soliman ’ s position . Thus , this argument is unavailing .”
In the end , the Second Circuit Court of Appeals joined with the Ninth Circuit ’ s ruling in Borden and concluded an ATDS is a system that randomly or sequentially generates telephone numbers to be dialed .
While this ruling is a big win for TCPA defendants facing ATDS suits , to my eye , the ruling conflicts with the Supreme Court ’ s decision in Duguid and seemingly redoubles the urgency in Congress to expand the scope of the TCPA ’ s ATDS definition .
As the current legislation expanding the statute is a massive overreach , this Soliman ruling may actually make things much worse for callers in short order if the legislature responds with a new law .
We ’ ll keep an eye on all of this .
And for the latest on the state of the ATDS landscape , be sure to visit the Facebook Ruling Resource Page and request a copy of our free 2024 TCPA Annual Review , presented by Contact Center Compliance .
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