Elizabeth Panzarella v. Navient Solutions Inc ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-2371
____________
ELIZABETH PANZARELLA; JOSHUA PANZARELLA,
Individually and on behalf of all others similarly situated,
Appellants
v.
NAVIENT SOLUTIONS, INC.
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil No. 2-18-cv-03735)
District Judge: Honorable Petrese B. Tucker
____________
Argued February 11, 2022
____________
Before: GREENAWAY, JR., SCIRICA, and RENDELL,
Circuit Judges.
(Filed: June 14, 2022)
James A. Francis
David A. Searles
Francis Mailman Soumilas
1600 Market Street
Suite 2510
Philadelphia, PA 19103
David P. Mitchell [ARGUED]
Maney & Gordon
101 East Kennedy Boulevard
Suite 1700
Tampa, FL 33602
Robert P. Cocco
Robert P. Cocco, P.C.
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Counsel for Appellants
Alan J. Butler
Megan Iorio
Christopher Frascella
1518 New Hampshire Avenue, N.W.
Washington, DC 20036
Counsel for Amicus/Appellants
Lisa M. Simonetti [ARGUED]
Greenberg Traurig
2
1840 Century Park East
Suite 1900
Los Angeles, CA 90067
Lindsay N. Aherne
Greenberg Traurig
1144 15th St.
Suite 3300
Denver, CO 80202
Joel M. Eads
Greenberg Traurig
1717 Arch Street Suite 400
Philadelphia, PA 19103
Counsel for Appellee
____________
OPINION OF THE COURT
___________
Rendell, Circuit Judge.
Elizabeth and Joshua Panzarella (“the Panzarellas”)
sued Navient Solutions, LLC (“Navient”), claiming that,
among other things, Navient violated the Telephone Consumer
Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The
Panzarellas assert that Navient called their cellphones without
3
their prior express consent using an automatic telephone
dialing system (“ATDS”) in violation of section
227(b)(1)(A)(iii) of the TCPA. The District Court granted
summary judgment for Navient. It concluded that Navient’s
dialing technology did not qualify as an ATDS under section
227(a)(1) of the TCPA because it viewed a particular
component of Navient’s dialing technology as separate from
its dialing system. As a result, it erred by failing to consider
whether Navient’s dialing “equipment” as a whole qualified as
an ATDS. Id. Even though we do not decide whether
Navient’s dialing equipment qualified as an ATDS, we find
that Navient did not use an ATDS in violation of the TCPA
when it called the Panzarellas. Thus, we will affirm the District
Court’s order on this alternative ground.
I.
Navient serviced the student loans of Matthew
Panzarella, Elizabeth’s son and Joshua’s brother. Matthew
listed both his mother and brother as references on student loan
applications and promissory notes and, in doing so, provided
their cell phone numbers to Navient. Eventually, he became
delinquent on his loans and failed to respond to Navient’s
attempts to communicate with him. In response, Navient
contacted the Panzarellas. Call logs show that, over five
months, Navient called the phone number alleged to belong to
Elizabeth four times (three of which were unanswered, and one
of which may have been answered) and the number alleged to
belong to Joshua fifteen times (all unanswered).
During the relevant period, Navient used telephone
dialing software developed by Interactive Intelligence Group,
4
Inc (“ININ”),1 the “Interaction Dialer.” This software allows
a user to “conduct[] campaigns” during which “calls are placed
to contacts based upon information read from a contact list.”
App. 185. For each campaign, the user may opt to use one of
several dialing methods, which employ varying levels of
automation. For example, in “Preview” mode, call center
agents initiate calls, while, in modes such as “Predictive” and
“Power,” the Interaction Dialer automatically dials telephone
numbers.2
The Interaction Dialer cannot conduct campaigns on its
own. Instead, it “is deployed across servers and workstations
that collectively make up the system.” App. 200. Three
servers are required: the Outbound Dialer Server, the Central
Campaign Server, and a database server. During a campaign
these three servers work together to make and process
outbound calls. The Outbound Dialer Server makes the
outbound calls, while the Central Campaign Server acts like an
intermediary gathering data from and passing these data among
the system’s servers. The database server, which “often runs
on dedicated hardware” yet “can reside on the [Central
Campaign Server],” contains “a set of database tables that are
created and managed automatically by Interaction Dialer” and
the customer-created “contact list.” App. 200, 203. The
Interaction Dialer relies on “external data sources for contacts
[l]ists and campaign tables,” and these tables “must be
1
ININ now does business under the name Genesys
Telecommunications Laboratories, Inc.
2
During the relevant period, Navient used two customized
versions of the Interaction Dialer, one with and one without the
“Agentless,” “Power,” and “Predictive” dialing modes. To call
the Panzarellas, it used the latter version.
5
managed by a database management system,” either Oracle
RDBMS or Microsoft SQL Server. App. 205. Users may
employ the Interaction Dialer’s “Contact Import Wizard” to
import contact data from their own sources or “create [their]
contact tables manually.” App. 205, 209.
As is relevant here, in its configuration of the Interaction
Dialer (the “ININ System”), Navient used a database server
managed by Microsoft SQL Server (the “SQL Server”). The
server performs two key functions for the ININ System. First,
it stores a list of numbers associated with student loan accounts
that have specific attributes (e.g., type of loan, stage of
delinquency). Although the SQL Server can generate 10-digit
random and sequential numbers in a ContactList table, all its
stored telephone numbers “are pulled from Artiva,” Navient’s
separate database of account information. App. 123 ¶ 19.
Second, the SQL Server plays a role in outbound calling
campaigns, relaying the stored telephone numbers to the ININ
System’s other servers to enable the System to dial them.
This appeal concerns whether Navient used the ININ
System in violation of the TCPA. The TCPA prohibits
individuals from, among other things,
mak[ing] any call (other than a call
made for emergency purposes or
made with the prior express
consent of the called party) using
any automatic telephone dialing
system . . .—
(i) to any emergency
telephone line . . . ;
6
(ii) to the telephone line of
any guest room or patient
room of a hospital health
care facility, elderly home,
or similar establishment; or
(iii) 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,
unless such call is made
solely to collect a debt
owed to the United States[.]
§ 227(b)(1)(A). Under section 227(a)(1) of the TCPA, an
ATDS is
equipment which has the
capacity—
(A) to store or produce
telephone numbers to be
called, using a random or
sequential number
generator; and
(B) to dial such numbers.
The Panzarellas filed a putative class action complaint
against Navient in the United States District Court for the
Eastern District of Pennsylvania, alleging that Navient used an
ATDS to call their and others’ cellphones without their prior
7
express consent in violation of section 227(b)(1)(A)(iii) of the
TCPA.3 They sought injunctive relief and statutory damages
under section 227(b)(3) of the TCPA as well as an award of
attorneys’ fees and costs on an equitable basis.4
Navient sought summary judgment, arguing, among
other things, that the Panzarellas’ “TCPA claims fail[ed]”
because Navient did not call them “us[ing] an ATDS[.]”
App. 62-63. It claimed it could not have done so as its ININ
System did not qualify as an ATDS under section 227(a)(1) of
the TCPA. It contended that, because this system lacked the
capacity to generate random or sequential telephone numbers
and then dial those numbers, it could not be an ATDS.5
The District Court granted summary judgment for
Navient holding that Navient did not use an ATDS to place the
calls at issue. It determined that Navient’s ININ System lacked
3
The Panzarellas defined the putative class as “[a]ll cellular
telephone subscribers in the United States who from
September 2012 to the present received an autodialed call from
Navient on their cellular telephone without their prior express
consent regarding a debt they did not owe.” App. 31.
4
The Panzarellas also alleged that Navient violated the Fair
Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the
“FDCPA”), which is not at issue on appeal. The District Court
granted Navient’s motion for summary judgment on these
claims, finding that the Panzarellas had abandoned them.
5
Navient also argued that, because the calls at issue were
placed with human intervention, these calls were not made by
an ATDS in violation of the TCPA. The District Court did not
address this argument, and Navient has not raised it on appeal.
8
the necessary present capacity to store or produce telephone
numbers using a random or sequential number generator. It
reasoned, relying largely on the characterization of such a
database server contained in the Interaction Dialer’s manual,
that the SQL Server was distinct from the ININ dialing system.
Consequently, the District Court found that the Panzarellas had
adduced “no evidence to suggest that the ININ dialing system
on its own is an ATDS” and granted Navient’s motion for
summary judgment on the Panzarellas’ TCPA claims. App. 10
(emphasis added).
The Panzarellas timely appealed their TCPA claims and
seek reversal only of the District Court’s grant of summary
judgment for Navient on these claims.
II.6
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1985). We review the
order granting summary judgment, including the factual and
legal questions, de novo. Ezaki Glico Kabushiki Kaisha v.
Lotte Int’l Am. Corp., 986 F.3d 250, 255 (3d Cir. 2021). We
“view the underlying facts and all reasonable inferences
therefrom in the light most favorable to the party opposing the
motion.” Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394,
402 (3d Cir. 2016) (citation omitted). “We may affirm on any
basis supported by the record, even if it departs from the
6
The District Court had jurisdiction over the underlying
putative class action under 28 U.S.C. § 1331. We exercise
jurisdiction under 28 U.S.C. § 1291.
9
District Court’s rationale.” TD Bank N.A. v. Hill, 928 F.3d
259, 270 (3d Cir. 2019).
III.
A.
The Panzarellas asserted that Navient violated section
227(b)(1)(A)(iii) by using an ATDS to call them without their
prior express consent. As noted above, the District Court
disagreed, concluding that Navient’s dialing system, the ININ
System, was not an ATDS as defined by section 227(a)(1). The
District Court’s conclusion, however, rested on its
misinterpretation of the TCPA’s ATDS definition, in particular
the meaning of “equipment.”
The TCPA requires that we consider the “equipment”
that the defendant employs to conduct calling campaigns.
§ 227(a)(1). To determine how widely this term sweeps, “we
look first to [the statute’s] language, giving the words used
their ordinary meaning.” Artis v. Dist. of Columbia, 138 S. Ct.
594, 603 (2018) (citation omitted). For an undefined term such
as “equipment,” we seek to determine its plain meaning at the
time of the TCPA’s enactment. Bostock v. Clayton Cnty., 140
S. Ct. 1731, 1738 (2020). At that time, equipment referred to
the tools used to achieve a particular purpose or objective. See,
e.g., Equipment, Merriam-Webster’s Dictionary of Law (1996)
(defining equipment as “the implements used in an operation
or activity”); Equipment, Black’s Law Dictionary (6th ed.
1990) (“Furnishings or outfit for the required purposes.
Whatever is needed in equipping; the articles comprised in an
outfit; equippage.”); see also Equipment, Black’s Law
Dictionary (11th ed. 2019) (“The articles or implements used
for a specific purpose or activity (esp. a business operation).”).
10
Accordingly, as ordinarily understood, equipment could
constitute several discrete objects that, together, served a single
purpose.
As “[s]tatutory language cannot be construed in a
vacuum,” we turn next to equipment’s context. Weyerhaeuser
Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 367 (2018)
(alteration in original) (citation omitted). This context shows
that Congress drafted the TCPA to regulate combinations of
devices that, when used together, functioned as autodialers.
Critically, Congress chose to regulate the use of “automatic
telephone dialing system[s].” § 227(b)(1)(A) (emphasis
added). By focusing on systems, it signaled that the TCPA
would reach combinations of devices that operate together.
See System, Black’s Law Dictionary (6th ed. 1990) (“Orderly
combination or arrangement, as of particulars, parts, or
elements into a whole; especially such combinations according
to some rational principle.”). At the time, both Congress and
the telemarketing industry understood this choice’s
consequences. See H.R. Rep. No. 101-633, at 6 (1990)
(discussing industry concerns about the scope of the ATDS
definition). Congress considered but declined to adopt
language that would have limited the ATDS definition to
certain types of dialing equipment. Compare § 227(a)(1)
(defining ATDSs in terms of “equipment”), with H.R. 628
(1989) (defining autodialers in terms of “telephone terminal
equipment”). See Sandoval v. Reno, 166 F.3d 225, 241 (3d Cir.
1999) (reasoning that Congress’s decision to exclude proposed
language from an earlier bill in the final bill confirmed the
court’s interpretation of the statute). Given the statute’s
remedial purpose, we have no difficulty concluding that
Congress envisioned a broad understanding of “equipment.”
See Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir.
11
2013) (relying on the TCPA’s status as a “remedial statute” to
confirm an interpretation of the statutory text).
The FCC’s interpretations of equipment bolster our
construction.7 See Daubert v. NRA Grp., LLC, 861 F.3d 382,
389-90 (3d Cir. 2017) (considering FCC rulings as part of its
interpretation of the TCPA). Since 2003, the FCC has
interpreted the TCPA to regulate certain combinations of
software and hardware. Rules & Regulations Implementing the
Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14,014, 14,091-
93 (2003) (determining predicative dialers qualified as ATDSs
because “[t]he hardware, when paired with certain software,
has the capacity to store or produce numbers and dial those
numbers” (emphasis added)). Recently, in 2015, it considered
whether a dialing system composed of devices owned and
operated by separate entities yet used together qualified as an
ATDS. Rules & Regulations Implementing the Tel. Consumer
Prot. Act of 1991, 30 FCC Rcd. 7961, 7977-78 (2015). In a
portion of the ruling left intact by the D.C. Circuit, see ACA
7
In PDR Network, LLC v. Carlton & Harris Chiropractic, the
Supreme Court suggested that the FCC’s interpretive rulings
may not bind courts when they construe the TCPA. 139 S. Ct.
2051, 2055-56 (2019) (holding that it could not determine
whether, under the Hobbs Act, a 2006 FCC order binds courts
without resolving two preliminary questions). For this reason,
we, as our sister circuits have done, will treat such rulings as
persuasive authority. Gorss Motels, Inc. v. Lands’ End, Inc.,
997 F.3d 470, 477 n.4 (2d Cir. 2021); Golan v. FreeEats.com,
Inc., 930 F.3d 950, 960 n.8 (8th Cir. 2019) (“We agree with the
FCC not because we believe we are bound to do so but because
we find this portion of their interpretation of the statute to be
persuasive.”).
12
Int’l v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018), the FCC
determined that such “a combination of equipment” could
constitute an ATDS as long as this “voluntary combination”
meets the ATDS definition’s requirements, Rules &
Regulations Implementing the Tel. Consumer Prot. Act of
1991, 30 FCC Rcd. at 7978. Emphasizing the statute’s use of
“system,” it reasoned that the TCPA “contemplate[s]” that
“various pieces of different equipment and software can be
combined to form an [ATDS].” Id.Equipment’s ordinary meaning, its context, and the
FCC’s interpretation of the ATDS definition, then, all point to
the same construction: an ATDS may include several devices
that when combined have the capacity to store or produce
telephone numbers using a random or sequential number
generator and to dial those numbers.
Applying this construction here, we find that the District
Court erred in holding that Navient’s dialing system was not
an ATDS because it viewed the SQL Server’s capacities as
distinct from the ININ System’s. Navient relied on the SQL
Server alongside the ININ System’s other components to
conduct dialing campaigns. This server not only stored the
telephone numbers that Navient contacted during campaigns,
but it also communicated with the ININ System’s other
servers, so the system could call them. Indeed, the Interaction
Dialer’s manual confirms that this dialer cannot conduct these
campaigns without a database server, like the SQL Server.
Navient points out that Microsoft rather than ININ developed
the SQL Server, and this server resides on its own dedicated
hardware. But this does not matter. As the TCPA requires us
to consider whether all the devices employed together to
conduct dialing campaigns constitute an ATDS, we conclude
that Navient’s “equipment” includes the SQL Server. Because
13
the District Court determined that Navient’s dialing system
was not an ATDS only after it excluded the SQL Server from
this system, we cannot affirm the District Court’s grant of
summary judgment on these grounds.
B.
Still, Navient insists that we should find that the ININ
System, including the SQL Server, could not qualify as an
ATDS under section 227(a)(1). It claims that, in its recent
decision Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), the
Supreme Court held that a dialing system “must presently and
actually use a random and sequential telephone number
generator” to qualify as an ATDS. Appellee’s Br. 28-29
(emphasis in original). Navient contends that the record
contains no evidence that the ININ System actually generated
random or sequential telephone numbers, and, therefore,
because it did not use an ATDS, it is still entitled to summary
judgment.
We disagree. Both Navient and the concurrence seize
on language in Duguid, claiming that it constitutes a holding
that an ATDS must actually use a random or sequential number
generator. But that is not the case. The issue before the Court
was quite different. In Duguid, the Supreme Court interpreted
the TCPA’s ATDS definition to resolve a circuit split between
the Second, Sixth, and Ninth Circuits on one side and our
Court, the Seventh, and Eleventh Circuits on the other. 141 S.
Ct at 1168 & n.4. The former group held that the phrase “using
a random or sequential number generator” modifies “produce”
but not “store.” Duran v. La Boom Disco, Inc., 955 F.3d 279,
283-84, 287 (2d Cir. 2020); Allan v. Pa. Higher Educ.
Assistance Agency, 968 F.3d 567, 579-80 (6th Cir. 2020);
Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th
14
Cir. 2018). The latter, on the other hand, determined that it
modifies both “produce” and “store.” Dominguez v. Yahoo,
Inc., 894 F.3d 116, 119 (3d Cir. 2018); Gadelhak v. AT&T
Servs., Inc., 950 F.3d 458, 468 (7th Cir. 2020); Glasser v.
Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th
Cir. 2020). Relying primarily on its understanding of section
227(a)(1)’s syntax and its application of the series-qualifier
canon, the Court adopted the latter group’s construction of the
TCPA, holding that, “[t]o qualify as an [ATDS,] a device must
have the capacity either to store a telephone number using a
random or sequential generator or to produce a telephone
number using a random or sequential number generator.”
Duguid, 141 S. Ct. at 1167, 1169-70 (emphasis added).
The opinion’s imprecise use of language ultimately
provides no support for Navient’s assertion that the Court held
that, to qualify as an ATDS, the equipment “must not only have
a present capacity to generate random or sequential numbers
and then dial them, it must [also] actually use that generator.”
Appellee’s Br. 19 (emphasis in original). Although the Court
restated the full ATDS definition—including “capacity”—
when it summarized its holding, 141 S. Ct. at 1168; id. at 1173
(“We hold that a necessary feature of an [ATDS] under §
227(a)(1)(A) is the capacity to use a random or sequential
number generator to either store or produce phone numbers to
be called.” (emphasis added)), in other places, it described the
ATDS definition in terms of the “use” of a random or
sequential number generator, e.g., id. at 1170 (“In sum,
Congress’ definition of an autodialer requires that in all cases,
whether storing or producing numbers to be called, the
equipment in question must use a random or sequential number
generator.” (emphasis added)); id. at 1171 (“The statutory
context confirms that the autodialer definition excludes
15
equipment that does not ‘us[e] a random or sequential number
generator.’” (emphasis added) (quoting § 227(a)(1)(A)). Yet,
these inconsistent statements, in their context, say nothing
about whether an ATDS must use a random or sequential
number generator or have the capacity to use a random or
sequential number generator. Indeed, this issue was not even
before the Court. Id. at 1168 (viewing the issue before it as
limited to resolving the circuit split regarding whether “using
a random or sequential number generator” modified “produce”
but not “store”). Rather, the Court employed this language to
explain that “using a random or sequential number generator”
modifies “store” and “produce.”8 That was the issue before it.
See Borden v. United States, 141 S. Ct. 1817, 1833 n.9 (2021)
(plurality opinion) (“‘[T]he language of an opinion,’ we have
stated, ‘is not always to be parsed as though we were dealing
with the language of a statute.’ And that is most obviously true
8
The concurrence contends that, through such language, the
Duguid Court demonstrated that its analysis went beyond
resolving the question of whether “using a random or
sequential number generator” modifies both “produce” and
“store.” In particular, it claims that the Court’s explanation of
the potential ramifications of a broad ATDS definition proves
the point. We disagree. The precise question before the Court
invited consideration of these consequences. The Court
observed that ordinary smartphones would qualify as ATDSs
if an ATDS need only be capable of storing and dialing
telephone numbers, as the Ninth Circuit had held below, id. at
1168, 1171, so it reasoned that, rather than have the capacity to
merely store telephone numbers, it must have the capacity to
store them “using a random or sequential number generator,”
§ 227(a)(1)(A).
16
when an opinion’s language revises (for easier reading) the
statute’s own. Better to heed the statutory language proper.”
(alteration in original) (quoting Reiter v. Sonotone Corp., 442
U.S. 330, 341 (1979))). Therefore, Duguid does not stand for
the proposition that a dialing system will constitute an ATDS
only if it actually generates random or sequential numbers.9
9
Even if Duguid could be read to suggest that section 227(a)(1)
requires an ATDS to actually use a random or sequential
number generator, we would consider these statements dicta
that do not bind us. Kirtsaeng v. John Wiley & Sons, Inc., 568
U.S. 519, 548 (2013); Singh v. Uber Techs. Inc., 939 F.3d 210,
223 (3d Cir. 2019). Moreover, although “we pay due homage
to the Supreme Court’s well-considered dicta as pharoi that
guide our rulings,” these dicta, if we accept Navient’s reading
of them, do not merit such treatment as they would then
conflict with the section 227(a)(1)(A)’s plain meaning. IFC
Interconsult, AG v. Safeguard Int’l Partners, LLC., 438 F.3d
298, 311 (3d Cir. 2006) (emphasis added) (declining to follow
a dictum it determined was “hardly a well-considered
dictum”). Cf. Kirtsaeng, 568 U.S. at 548 (declining to afford
weight to a dictum from a previous opinion and noting that “we
are not necessarily bound by dicta should more complete
argument demonstrate that the dicta [are] not correct”).
The concurrence suggests this reading of Duguid is well
considered, but it makes little effort to square this
interpretation of section 227(a)(1) with the statutory text or our
holding in Dominguez. It argues that an actual-use requirement
does not conflict with section 227(a)(1)’s use of “capacity”
because it views “‘[c]apacity’ [as] a prerequisite to ‘use.’”
Concurring Op. I. n.3. Section 227(a)(1)’s text, however,
cannot bear such a construction. The phrase “using a random
17
Instead, under section 227(a)(1), whether “equipment”
qualifies as an ATDS turns on that equipment’s “capacity” to
employ a random or sequential number generator to store or
produce telephone numbers, not its actual use of a such a
generator. § 227(a)(1). We have held that, for a dialing system
to qualify as an ATDS, it need only have the “present capacity
to function as an autodialer by generating random or sequential
telephone numbers and dialing those numbers.” Dominguez,
894 F.3d at 119, 121; see also King v. Time Warner Cable, 894
F.3d 473, 481 (2d Cir. 2018) (adopting a similar interpretation
of “capacity”); ACA Int’l, 885 F.3d at 696 (explaining that
whether a particular function is a “capacity” of that device
turns on the significance of the modification needed to employ
that function). Here, there is conflicting evidence in the record
or sequential number generator” modifies the phrase “to store
or produce telephone numbers to be called,” which, in turn,
modifies “capacity.” “[U]sing a random or sequential number
generator,” thus, refers to how an ATDS must be capable of
storing or producing telephone numbers. So, if we were to
decide whether Navient’s dialing system qualifies as an ATDS,
section 227(a)(1), as we held in Dominguez, 894 F.3d at 119,
121, would require us to consider whether the equipment in
question has the present capacity to employ random- or
sequential-number generation “to store or produce telephone
numbers to be called[.]” And, as we note, based on the record
before us, we cannot answer that question.
Perhaps, the Supreme Court might interpret section 227(a)(1)’s
use of “capacity” differently when a case provides the occasion
for it to do so, but, at this moment, that prospect is not enough
for us to discard Dominguez. See Rehkop v. Berwick
Healthcare Corp., 95 F.3d 285, 291 (3d Cir. 1996).
18
concerning the “present capacity” of the entire ININ System
(inclusive of the SQL Server) to employ random- or sequential-
number generation to store or produce telephone numbers. For
this reason, we cannot hold that ININ System does or does not
qualify as an ATDS.10
IV.
While the District Court erred in granting summary
judgment based on whether the ININ System qualified as an
ATDS, summary judgment may still have been properly
granted if we find the record makes clear that, when Navient
called the Panzarellas, it did not “make [these calls] . . . using
any [ATDS].” § 227(b)(1)(A) (emphasis added). That is so
because a violation of section 227(b)(1)(A)(iii) requires proof
that the calls at issue be made “using” an ATDS. This issue
turns not on whether Navient’s dialing equipment was an
ATDS but on whether Navient violated the TCPA when it
employed this dialing equipment to call the Panzarellas.11
10
Although the District Court did not address this issue, we
will not remand the case for it do so because we can resolve
this appeal on alternative grounds.
11
We may affirm the District Court’s decision on these
different grounds even though the parties have not focused on
this issue. “[O]ur adversarial legal system generally adheres to
the principle of party presentation,” under which parties frame
the issues before the court. Guerra v. Consol. Rail Corp., 936
F.3d 124, 132 & n.5 (3d Cir. 2019). Nevertheless, “[w]hen an
issue or claim is properly before the court, the court is not
limited to the particular legal theories advanced by the parties,
but rather retains the independent power to identify and apply
19
“As in any statutory construction case, [w]e start, of
course, with the statutory text, and proceed from the
understanding that [u]nless otherwise defined, statutory terms
are generally interpreted in accordance with their ordinary
meaning.” Sebelius v. Cloer, 569 U.S. 369, 376 (2013)
(alterations in original) (internal quotation marks and citation
omitted). We, then, must consider how an ordinary person
would understand the phrase “making any call . . . using any
[ATDS].” § 227(b)(1)(A) (emphasis added); see Watson v.
United States, 552 U.S. 74, 79 (2007) (interpreting a statute’s
use of “use” in accordance with its ordinary understanding
when this term was undefined).
This inquiry gets us only so far for use is an “elastic”
term with a range of possible meanings. Smith v. United
States, 508 U.S. 223, 241-43 (1993) (Scalia, J., dissenting)
(listing a few of use’s varied definitions). For example, in
Smith, the Justices, relying on different understandings of the
ordinary meaning of to use an object or instrument, adopted
different interpretations of the phrase to “use[] . . . a firearm”
in 18 U.S.C. § 924(c)(1) (Supp. II 1990), which imposed
“specified penalties if the defendant, ‘during and in relation to
any crime of violence or drug trafficking crime[,] uses or
carries a firearm.’” Id. at 227-28 (majority opinion) (alteration
in original). On the one hand, Justice Scalia reasoned that,
consistent with the ordinary meaning of to use an instrument,
an individual used a firearm within the meaning of the statute
when it used it for its intended purpose, namely as a firearm.
See id. at 242-44 (Scalia, J., dissenting). Writing for the
majority, Justice O’Connor, on the other hand, adopted a
the proper construction of governing law.” Kamen v. Kemper
Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
20
broader reading of to use a firearm that would allow a broader
range of uses (such as “pistol-whip[ping]”) based not only on
the plain meaning of use but also on the context of the
surrounding statutory provisions. See id. at 228-37 (majority
opinion).
We encounter a similar predicament here. As the D.C.
Circuit observed in ACA International in considering the
possible interpretations of section 227(b)(1)(A)’s phrase
“using any [ATDS],” when an ATDS has
the “capacity” both to perform the
autodialer functions set out in the
statutory definition and to perform
as a traditional phone, does the bar
against “making any call using” an
ATDS apply only to calls made
using the equipment’s ATDS
functionality? Or does the bar
apply to all calls made with a
device having that “capacity,”
even ones made without any use of
the equipment’s autodialer
capabilities? Or does the bar apply
to calls made using certain
autodialer functions, even if not all
of them?
885 F.3d at 704 (emphasis added) (declining to resolve this
question when the petitioners did not challenge an
interpretation of section 227(b)(1)(A)’s language). Faced with
this conundrum, we must seek “to give effect to Congress’s
intent.” United States v. Tyson, 947 F.3d 139, 144 (3d Cir.
2020) (internal quotation marks and citation omitted). In most
21
instances, we rely on the statute’s plain language “[b]ecause
we presume that Congress’ intent is most clearly expressed in
the text of the statute.” Hagans v. Comm’r of Social Sec., 694
F.3d 287, 295 (3d Cir. 2012) (internal quotation marks and
citations omitted); see also CTS Corp. v. Waldburger, 573 U.S.
1, 12 (2014) (“Congressional intent is discerned primarily from
the statutory text.”). Yet, “[w]here,” as here, the “statute’s
language is arguably not plain,” we look beyond the statutory
text to ascertain Congress’s intent, “consider[ing] [the]
statutory language in the larger context or structure of the
statute in which it is found” and its “legislative history as an
aid or cross-check.” United States ex rel. Greenfield v. Medco
Health Sols., Inc., 880 F.3d 89, 95 (3d Cir. 2018) (internal
quotation marks and citations omitted). Here too, the statute’s
context, purpose, and legislative history help us to interpret
section 227(b)(1)(A) as Congress intended. When we rely on
these aids to inform our understanding of the statutory text, we
see that Congress employed use in a narrow sense in section
227(b)(1)(A), namely, to use an ATDS for its autodialing
functionalities.
Starting with the context of the phrase “using any
[ATDS],” we look to section 227(b)(1)’s other prohibitions.
See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (interpreting “use”
“in its context and in light of the terms surrounding it”); United
States v. Diallo, 575 F.3d 252, 258-60 (3d Cir. 2009) (relying
on the term’s context to interpret the meaning of “use” within
a statute). As the Sixth Circuit recognized in Ashland Hospital
Corp. v. SEIU, where it considered section 227(b)(1)(D)’s
meaning, all four of these provisions, despite focusing on
different conduct, “regulate[] first-order-contact between
automated calls and the unwilling recipients of such calls[.]”
708 F.3d 737, 743 (6th Cir. 2013). So, when interpreting them,
22
“the appropriate touchstone . . . is the actual receipt of an
unwanted automated telephone communication.” Id.A narrower construction of use hews to this touchstone
by focusing section 227(b)(1)(A)’s prohibition on calls that
employ ATDSs as autodialers. By contrast, we would cast it
aside if we adopted a broader construction. Under such a
construction, liability would turn on whether the relevant
dialing equipment had the required capacities not whether the
defendant employed these capacities to make automated calls.
The statutory context shows that the latter inquiry must inform
the scopes of 227(b)(1)’s provisions. Cf. id. at 739-40, 743-44(reasoning that a union did not “use an [ATDS]” in violation
of section 227(b)(1)(D) when it conducted an automated
calling campaign that played individuals a recorded message,
prompted them to contact a hospital executive by pressing one
on their phones, and connected the individuals who did so with
that executive’s direct line because it did not employ the
automated process to make the calls that tied up the hospital’s
phone lines). Thus, this contrary result counsels against the
broader construction and in favor of the narrower one. See
Nielsen v. Preap, 139 S. Ct. 954, 970-71 (2019) (rejecting a
construction of a statute that would produce “anomalies”).
We know Congress was concerned with the use of
ATDS as autodialers because the TCPA proscribes only a few
specific uses of ATDSs. Mims v. Arrow Fin. Servs, LLC, 565
U.S. 368, 373 (2012) (explaining the TCPA proscribes calls
made using an ATDS to emergency numbers, hospital patients,
and cellphone and pager numbers; residential telephones
without the recipient’s consent; and the use of an ATDS to tie
up more than one telephone line of a business at the same time).
It crafted these prohibitions with autodialing’s harms in mind.
Duguid, 141 S. Ct. at 1171. Congress enacted the TCPA in
23
response to “[v]oluminous consumer complaints about abuses
of telephone technology[.]” Mims, 565 U.S. at 370-71. Yet, it
“found autodialer technology to be uniquely harmful” as these
devices could tie up the phone lines of businesses and
emergency services and impose costs on randomly dialed
cellphone users. Duguid, 141 S. Ct. at 1167.
Of course, at the highest level of generality, “Congress
passed the TCPA to protect individual consumers from
receiving intrusive and unwanted calls.” Daubert, 861 F.3d at
389 (quoting Gager, 727 F.3d at 268). Even so, the legislative
history makes clear that it did not do so “to make all unsolicited
telemarketing or facsimile advertising illegal.” H.R. Rep. No.
102-317, at 6 (1991). Such blunt legislation would have, in
fact, frustrated Congress’s aims. See Telephone Consumer
Protection Act of 1991, Pub. L. 102-243, § 2(9), 105 Stat.
2394, 2394 (recognizing that “[i]ndividuals’ privacy rights,
public safety interests, and commercial freedoms of speech and
trade must be balanced in a way that protects the privacy of
individuals and permits legitimate telemarketing practices”).
Rather, in committee reports, Congress explained that the
TCPA’s prohibitions targeted “autodialed calls.” S. Rep.
No. 102-177, at 9 (1991) (explaining the bill “would ban all
autodialed calls, and artificial or prerecorded calls, from being
made to emergency lines and paging and cellular phones”);
S. Rep. No. 102-178, at 10 (1991) (summarizing the
restrictions as “ban[ning] all autodialed calls, and artificial or
prerecorded calls, to emergency lines and paging and cellular
phones”); see also H.R. Rep. No. 102-317, at 6. Put
differently, it “meant to use a scalpel” to address specific harms
autodialing caused. Duguid, 141 S. Ct. at 1171.
Despite the text’s lack of clarity, Section 227(b)(1)(A)’s
context and legislative history establish that Congress drafted
24
this statute to prohibit making calls that use an ATDS’s
autodialing functionalities.
This construction leaves us with another question to
resolve: what does it mean to make a call using an ATDS’s
autodialing functionalities? Here, the TCPA’s definition of an
ATDS proves illuminating. It shows that, at its core,
autodialing is the “product[ion] or stor[age] of telephone
numbers to be dialed, using a random or sequential number
generator.” § 227(a)(1). After all, without the capacity to
perform one of these functions, a dialing system cannot qualify
as an ATDS. Id. We already reached this conclusion implicitly
in Dominguez when we explained that the TCPA defined an
ATDS based on its “present capacity to function as an
autodialer by generating random or sequential telephone
numbers and [to] dial[] those numbers.” 894 F.3d at 121
(emphasis added); see also ACA Int’l, 885 F.3d at 696, 704
(describing these same capabilities as “autodialer features” and
“autodialer functions”). More recently, in Duguid, the
Supreme Court determined that an ATDS’s defining feature
was its ability to employ random or sequential number
generation to produce or store telephone numbers. 141 S. Ct.
at 1170-71. Therefore, to use an ATDS as an autodialer, one
must use its defining feature—its ability to produce or store
telephone numbers through random- or sequential-number
generation.
What is more, when we interpret “making any call . . .
using any [ATDS]” to mean making any call using any ATDS’s
ability to use a random or sequential number generator to
produce or store telephone numbers, § 227(b)(1)(A), we give
effect to both the TCPA’s definition of an ATDS and its
targeted prohibitions. See Sturgeon v. Frost, 577 U.S. 424, 438
(2016) (noting that courts interpret statutory language “with a
25
view to [its] place in the overall statutory scheme” (citation
omitted)). Congress has structured other consumer protection
legislation similarly, such as the FDCPA, another statute
enforceable through a private right of action. See Barbato v.
Greystone All., LLC, 916 F.3d 260, 264-65 (3d Cir. 2019). As
a “threshold requirement,” an FDCPA claim must concern a
“debt,” which the Act broadly defines as “any obligation or
alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or
services which are the subject of the transaction are primarily
for personal, family, or household purposes, whether or not
such obligation has been reduced to judgment,” 15 U.S.C.
§ 1692(a)(5). St. Pierre v. Retrieval-Masters Creditors
Bureau, Inc., 898 F.3d 351, 358 (3d Cir. 2018) (quoting
Zimmeran v. HBO Affiliate Grp., 834 F.2d 1163, 1167 (3d.
Cir. 1987)). After this threshold, the FDCPA narrows: an
individual may obtain damages only when certain proscribed
practices are employed to collect debts. See 15 U.S.C.
§§ 1692c-1692f, 1692k; Heintz v. Jenkins, 514 U.S. 291, 292-
93 (1995); see also Douglass v. Convergent Outsourcing, 765
F.3d 299, 303 (3d Cir. 2014) (noting that a plaintiff, among
other things, must establish “the defendant has violated a
provision of the FDCPA in attempting to collect [a] debt” “[t]o
prevail on an FDCPA claim”).
Congress’s decision to rely on a similar structure when
drafting the TCPA makes sense. At the time of the TCPA’s
enactment, autodialers worked in a variety of ways. See Noble
Systems Corp., Comments in Response to the FCC’s Request
for Comments on the Interpretation of the TCPA in Light of the
Ninth Circuit’s Decision in Marks v. Crunch San Diego, 10-
12, WC Docket Nos. 18-152 & 02-278, FCC DA 18-1014
(Oct. 16, 2018), available at
26
https://www.fcc.gov/ecfs/file/download/DOC-
599f9ebe18c00000-
A.pdf?file_name=Noble_System_Comments_FCC_DA18-
1014_FINAL.pdf (discussing various autodialer patents issued
in the years before the TCPA’s enactment). Moreover,
Congress understood not only that telemarketers could
transform ordinary computers into autodialers through minor
and inexpensive modifications, The Automated Telephone
Consumer Protection Act of 1991: Hearing on S. 1462 before
the Sen. Subcomm. on Commc’ns of the Comm. on Commerce,
Sci., and Transp., 102d Cong. 18 (1991) [hereinafter 1991
Senate Hearing] (testimony of Robert S. Bulmash), but also
that they were increasingly relying on computerized databases
containing telephone numbers during their dialing campaigns,
H.R. Rep. No. 102-317, at 7-8 (describing the increasing
reliance on computerized databases for telemarketing and
noting that the industry has responded with markets for such
software, lists of consumer data, and guides on how to make
the best use of these tools). The TCPA’s statutory design fit
(and continues to fit) this shifting technological landscape. See
1991 Senate Hearing, supra, at 19 (testimony of Robert S.
Bulmash) (discussing the telemarketing industry’s increasing
use of “predictive dialers”). A broad definition of an ATDS
based on a dialing system’s “capacity” ensured that
telemarketers could not evade all TCPA scrutiny at the outset
through arguments about how their precise systems operate.
The narrow prohibitions balanced the definition’s breadth,
imposing liability only when those telemarketers used their
27
dialing systems to cause the harms the TCPA sought to
eliminate.12
A simple hypothetical illustrates how sections 227(a)(1)
and 227(b)(1)(A) work together. Imagine Junk Call Corp.
employs a dialing system with a switch that allows Junk Call
to make calls in one of two modes: “automatic,” in which the
system dials random or sequential telephone numbers, and
“list,” in which the system dials the telephone numbers
imported from Junk Call’s customer list. This dialing system
qualifies as an ATDS because it has the present capacity to
12
The concurrence questions the wisdom of this statutory
framework, contending that Congress could have achieved the
same result by narrowing the definition of an ATDS. While
that may be so, Congress understood the consequences of such
an approach. In fact, the FCC explained that such an approach
could “curtail innovation” or “eliminate legitimate
telemarketing operations.” 1991 Senate Hearing, supra, at 54
(testimony of Alfred C. Sikes, Chairman, FCC) (“If all uses of
a given class of equipment are publicly detrimental a statutory
prohibition on its use might be warranted. The record does not
show, however, that all existing or potential uses of all
automatic dialing machines are detrimental. There is thus a
risk that a practical, although unintended consequences of
these bills might be to curtail innovation, or to eliminate
legitimate telemarketing operations.” (emphasis added)).
Besides, even if we believe that a different statutory design
could better achieve the TCPA’s ends, we are not empowered
to improve Congress’s work. See United States v. Safehouse,
985 F.3d 225, 238-39 (3d. Cir. 2021) (declining to adopt an
interpretation that would require the court “to rewrite the
statute”).
28
produce random telephone numbers and then dial them. See
Dominguez, 894 F.3d at 119-20, 120 n.23. A broad
construction of “using any [ATDS]” (i.e., section 227(b)(1)(A)
prohibits any call made with the assistance of an ATDS) would
mean that Junk Call would violate the TCPA when it conducts
calling campaigns in either automatic mode or list mode.
Under the narrower construction (i.e., section 227(b)(1)(A)
proscribes calls that employ an ATDS’s capacity to generate
random or sequential numbers), Junk Call’s automatic-mode
calls alone would give rise to TCPA liability.
Only the latter reading gives effect to Congress’s intent
in enacting the TCPA. Because Junk Call dials random or
sequential numbers only when it employs automatic mode,
automatic-mode calls, but not list-mode calls, threaten the
harm the TCPA targets—telemarketing “that risks dialing
emergency lines randomly or tying up all the sequentially
numbered lines at a single entity.” Duguid, 141 S. Ct. at 1171.
Congress would have little reason to expose Junk Call to
liability for its list-mode calls as these calls do not present these
risks. If we interpreted section 227(b)(1)(A) to proscribe calls
where an ATDS has not used its number-generation
capabilities, then we “would take a chainsaw to the[] nuanced
problems” Congress intended to remedy. Id. Heeding the
Supreme Court’s advice, we read section 227(b)(1)(A) to
protect Americans from a particular type of harm as Congress
intended (and drafted). See id. Thus, we hold that, for a call
to violate section 227(b)(1)(A), that call must employ either an
ATDS’s capacity to use a random or sequential number
generator to produce telephone numbers to be dialed or its
capacity to use a random or sequential number generator to
store telephone numbers to be dialed.
29
Here, the Panzarellas’ claims fail because the record
establishes that Navient did not rely on random- or sequential-
number generation when it called them. Even if we assume
that the ININ System, through the SQL Server, had the
capacity to generate lists of random or sequential telephone
numbers and was thus an ATDS, Navient did not use the ININ
System in this way. Instead, it selected a dialing campaign’s
potential targets from “specific, curated borrower lists.” App.
124 ¶ 22. These lists contained contact information drawn
from Navient’s internal database of account information rather
than computer-generated number tables. Consequently, the
lists that served as the basis for its calling campaigns contained
“specific numbers associated with [Navient’s] student loan
accounts.” App. 125 ¶ 30.
When it placed the calls at issue, Navient drew the
Panzarellas’ cellphone numbers from such a list. The
Panzarellas have identified no evidence that even suggests
Navient called them in anything but a targeted manner. This,
of course, makes sense. Navient wanted to speak specifically
to the Panzarellas because Matthew’s loans had become
delinquent.13 Besides, what reason would Navient have to call
phone numbers unrelated to borrowers’ accounts when
following up on delinquent loans?
At bottom, as the record contains no evidence that
Navient used the ININ System to randomly or sequentially
produce or store the Panzarellas’ cellphone numbers and
therefore no evidence that Navient made a telephone call using
13
Despite disputing precisely why Navient contacted the
Panzarellas, the parties agree that the calls all stemmed from
Matthew’s delinquent loans.
30
an ATDS in violation of the TCPA, Navient is entitled to
summary judgment on the Panzarellas’ TCPA claims.
V.
Because, even if Navient’s ININ System qualified as an
ATDS under the TCPA, there is no genuine issue of material
fact as to whether Navient called the Panzarellas’ cellphones
without their consent “using an[] [ATDS]” in violation of
section 227(b)(1)(A)(iii) of the TCPA. We will therefore
affirm the District Court’s grant of summary judgment on these
alternate grounds.
31
GREENAWAY, JR., Circuit Judge, concurring in the
judgment.
While I respect my colleagues’ position and agree with
the decision to affirm,1 I disagree on the fundamental question
we must resolve. According to the majority, that question is:
was Navient Solutions, Inc. (“Navient”) using an automatic
telephone dialing system (“ATDS”) under 47 U.S.C.
§ 227(b)(1)(A)? In my view, the fundamental question is: what
is an ATDS under § 227(a)(1)? I would hold that a dialing
system must actually use a random or sequential number
generator to store or produce numbers in order to qualify as an
ATDS under § 227(a)(1). Because Navient’s dialing system
did not do so, it is not an ATDS, and Navient is entitled to
summary judgment.
I.
Initially, we cannot skip to § 227(b)(1)(A)—the issue of
whether a call was made using an ATDS—without first
identifying a reasonable interpretation of ATDS under
§ 227(a)(1). The key inquiry is whether an ATDS refers to: (1)
equipment that has the capacity to store or produce numbers
using a random or sequential number generator, but does not
currently use the generator; or (2) equipment that actually uses
a random or sequential number generator to store or produce
1
I also agree with the majority’s conclusion that the SQL
Server should be considered as part of the “equipment” that
constitutes Navient’s dialing system. The District Court erred
in treating the SQL Server as discrete from the ININ System.
Nonetheless, I would affirm on the alternative ground that
Navient’s dialing system does not qualify as an ATDS.
1
numbers. I would conclude that the latter interpretation
controls.
Under § 227(a)(1) of the Telephone Consumer
Protection Act (“TCPA”), an ATDS is
equipment which has the capacity—
(A) to store or produce telephone numbers to be
called, using a random or sequential number
generator; and
(B) to dial such numbers.
47 U.S.C. § 227(a)(1).
Recently, the Supreme Court resolved a circuit split as
to whether the clause “using a random or sequential number
generator” in § 227(a)(1)(A) modified only the verb that
immediately precedes it (“produce”) or both preceding verbs
(“store” and “produce”). Facebook, Inc. v. Duguid, 141 S. Ct.
1163, 1169 (2021) (“Duguid”). In doing so, it indicated that
equipment’s “use” of a number a generator—rather than its
mere “capacity” to use a generator—is a defining feature of an
ATDS.
In Duguid, the Court considered whether Facebook
violated the TCPA by sending automated text messages to
numbers associated with Facebook accounts any time those
accounts were accessed by an unrecognized number. Id. at
1168. Importantly, Facebook merely stored numbers
associated with the accounts—it did not store or produce the
numbers using a random or sequential number generator. Id.Reasoning that “using a random or sequential number
generator” modifies both “store” and “produce” in
§ 227(a)(1)(A), the Supreme Court held that Facebook’s
2
system did not qualify as an ATDS because it did not use a
random or sequential number generator. Id. at 1170. Put
differently, dialing numbers from a stored list was insufficient.
Id.
Writing for the Court, Justice Sotomayor asserted:
“Congress’ definition of an autodialer requires that in all cases,
whether storing or producing numbers to be called, the
equipment in question must use a random or sequential number
generator.” Id. (emphasis added). In my view, this indicates
that the mere capacity to use a number generator is insufficient
for equipment to constitute an ATDS.
Admittedly, whether the requirement that equipment
must actually “use” a number generator is part of Duguid’s
holding as opposed to dicta is equivocal.2 Compare id. (“in all
2
The majority argues that Duguid stands only for the
proposition that “using a random or sequential number
generator” modifies both preceding verbs. But instead of
ending its analysis there, the Supreme Court went further. It
asserted: “Congress defined an autodialer in terms of what it
must do (‘store or produce telephone numbers to be called’)
and how it must do it (‘using a random or sequential number
generator’).” Facebook, Inc. v. Duguid, 141 S. Ct. 1163,
1169 (2021) (emphasis added).
Indeed, if capacity was the test, the Supreme Court would not
have cautioned against the unreasonable implications of
broadly interpreting ATDS to include “any equipment that
merely stores and dials telephone numbers.” Id. at 1171. As
the Supreme Court observed, that approach “would capture
virtually all modern cell phones” and impose liability on
3
cases . . . the equipment . . . must use a . . . number generator”)
with id. at 1173 (“We hold that a necessary feature of an
autodialer under § 227(a)(1)(A) is the capacity to use a random
or sequential number generator to either store or produce phone
numbers to be called”). Nonetheless, where, as here, the
Supreme Court has offered its “well-considered” guidance on
the precise issue that we confront, that guidance—dicta or
not—warrants our attention. IFC Interconsult, AG v.
Safeguard Int’l Partners, LLC., 438 F.3d 298, 311 (3d Cir.
2006) (“we pay due homage to the Supreme Court’s well-
considered dicta as pharoi that guide our rulings”).
Construing § 227(a)(1) as requiring an ATDS to
actually use a random or sequential number generator is
consistent with the purpose of the TCPA, which targets
autodialed calls that employ a number generator. Gager v. Dell
Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir. 2013) (citing S.
Rep. 102-178, at 5 (1991), reprinted in 1991 U.S.C.C.A.N.
1968, 1972). By contrast, treating equipment with the mere
capacity to use a number generator as ATDSs would be over-
inclusive. If Congress meant to prohibit autodialed calls, then
why include dialing systems that do not actually use a number
generator in the definition of ATDS?
At bottom, the broad definition of ATDS articulated by
the majority in this case is inconsistent with the concerns
animating Duguid. The majority agrees that Congress’ intent
“ordinary cell phone owners in the course of commonplace
usage, such as speed dialing or sending automated text
message responses.” Id. Accordingly, a narrower
construction of ATDS is appropriate.
4
was to stop autodialed calls; however, the majority broadly
construes ATDS in § 227(a)(1) to encompasses equipment
with the mere capacity to store or produce numbers using a
generator, even if it does not actually use that generator. Then,
to effectuate Congress’ intent, the majority narrows the scope
of the TCPA on the back end. Specifically, it interprets §
227(b)(1)(A) as proscribing only those calls that are made
using a generator. In this way, it corrects the problem it created
in the first step. This holding creates a precarious framework
where many dialing systems may qualify as an ATDS, but the
use of only some of those ATDSs would violate the TCPA:
namely, when an entity places an unwanted call using an
ATDS that stores or produces numbers using a generator.
Accordingly, I would adopt a narrower definition of ATDS
requiring actual use of a random or sequential number
generator.3
Further, I am not persuaded that the majority’s approach
is necessary for addressing dialing systems that can switch
between placing calls using automatic mode (“which dials
random or sequential numbers”) and list mode (“which dials
the telephone numbers imported into [an entity’s] customer
list”). Majority Op. 22. In the majority’s view, these dialing
3
To be clear, treating “use” as dispositive in § 277(a)(1) does
not write out the term “capacity” as the Panzarellas suggest.
Quite the contrary. “Capacity” is a prerequisite to “use.” If a
dialing system lacks the capacity to do what is proscribed by
the statute, the inquiry would end there—there would be no
need to consider whether the system is using its capacity.
Alternatively, if a device satisfies the “capacity” threshold
inquiry, then we would move onto the “use” issue.
5
systems qualify as ATDSs—either way the switch is flipped—
because they have the present capacity to generate random
telephone numbers and then dial them. See Dominguez v.
Yahoo, 894 F.3d 116, 119-20, 120 n.23 (3d Cir. 2018).
However, only the calls made using automatic mode would
violate the TCPA, as the calls made using list mode do not
“threaten the harm the TCPA targets—telemarking ‘that risks
dialing emergency lines randomly or typing up all sequentially
numbered lines at a single entity.’” Majority Op. 22 (citing
Duguid, 141 S. Ct. at 1171).
But if the goal is to prohibit only the autodialed calls,
why should we construe § 227(a)(1) of the TCPA as covering
the list mode at all? We can reach the same result and target
the same evils under a narrow definition of ATDS—one that
requires actual use of a generator to store or produce numbers.
Under the narrow definition, the described dialing system
qualifies as an ATDS and is subject to the TCPA when it places
calls in automatic mode. As soon as it switches to list mode,
the dialing system ceases to be an ATDS because it no longer
poses the concerns that Congress meant to mitigate.
II.
Even considering the SQL Server as part of the ININ
System, I would hold that Navient’s dialing system is not an
ATDS. Navient’s dialing system does not currently store or
produce numbers using a random or sequential number
generator—and the Panzarellas do not argue otherwise. In its
current configuration, the SQL Server merely stores a list of
numbers associated with student loan accounts that have
specific attributes (e.g., type of loan, stage of delinquency).
Then, the numbers are uploaded to the ININ System to initiate
a calling campaign.
6
That the SQL Server could be reconfigured to use a
random or sequential number generator does not render
Navient’s dialing system an ATDS. Duguid instructs that
Section 277(a)(1) regulates actual use, not potential. Given the
nature of Navient’s loan business and its corresponding need
to contact specific debtors and their references, it is difficult to
articulate a reason why Navient would use a random or
sequential number generator.
Because I do not think that Navient’s dialing system
qualifies as an ATDS, I would not reach the issue of whether
Navient made calls “using any [ATDS]” under
§ 277(b)(1)(A)(iii), upon which the majority relies.
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