TheThird Circuit Court of Appeals (Third Circuit) issued a significant decision regarding the TCPA’s restrictions in Section 227(b)(1)(A)(iii) on using an automatic telephone dialing system (ATDS) definition to make calls or texts to cellphones without prior express consent. In Panzarella v. Navient Solutions, Inc, No. 20-2371 (3d Cir. June 14, 2022) (Panzarella), a divided panel of the Third Circuit held that merely using a system with the capacity to be an ATDS to send the challenged text or message is not enough to establish a Section 227(b)(1)(A)(iii) violation. Instead, the court ruled that a Section 227(b)(1)(A)(iii) plaintiff must prove, among other things, that the challenged call or text “employ[ed] either an ATDS’s capacity to use a random or sequential number generator to produce” the telephone number dialed “or its capacity to use a random or sequential number generator” to store the telephone number dialed.
The TCPA prohibits individuals from using an ATDS to make non-emergency calls without the prior express consent of the called party to “any telephone number assigned to a paging service, cellular telephone service, or any service for which the called party is charged for the call.” TCPA § 227(b)(1)(A)(iii). The statute defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, suing a random or sequential number generator; and (B) to dial such numbers.” TCPA § 227(a)(1).
In Panzarella, Plaintiffs brought a putative class action against student loan servicer, alleging the loan servicer violated the TCPA by using an ATDS to call theirs and others’ cellphones without prior express consent. The loan servicer moved for summary judgment, contending that it did not call Plaintiffs using an ATDS because their dialing system did not have the ability to generate and then call random or sequential telephone numbers. The United States District Court for the Eastern District of Pennsylvania agreed. To read more click here.