19-600-cv
Duran v. La Boom Disco, Inc.




                         In the
             United States Court of Appeals
                 for the Second Circuit


                                AUGUST TERM 2019

                                   No. 19-600-cv

 RADAMES DURAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY
                          SITUATED,
                      Plaintiff-Appellant,

                                           v.

                               LA BOOM DISCO, INC.,
                                Defendant-Appellee.



              On Appeal from the United States District Court
                   for the Eastern District of New York



                          SUBMITTED: DECEMBER 13, 2019
                             DECIDED: APRIL 7, 2020



Before: CABRANES and LOHIER, Circuit Judges, and REISS, District
Judge.*



* Judge Christina Reiss, of the United States District Court for the District of
Vermont, sitting by designation.
      Plaintiff-Appellant Radames Duran (“Duran”) claims that he
received, over the course of more than a year-and-a-half, hundreds of
unsolicited text messages from Defendant-Appellant La Boom Disco,
Inc. (“LBD”), all sent using Automatic Telephone Dialing Systems
(“ATDSs”) in a way prohibited by the Telephone Consumer Protection
Act of 1991 (“TCPA”). LBD acknowledges that it sent the messages,
but counters that its actions were not prohibited by the TCPA because
the texting platforms used to send them were not, in fact, ATDSs. Of
course, only one party can be right: either LBD used ATDSs, or it did
not. If LBD did do so, then it is liable to Duran under the TCPA. But if
LBD did not do so—if it used some non-ATDS technology to send its
texts—then Duran has no case.

      Duran appeals from a grant of summary judgment in the U.S.
District Court for the Eastern District of New York (Allyne R. Ross,
Judge) in favor of LBD. To qualify as an ATDS, a dialing system must
have both the capacity “to store or produce telephone numbers to be
called, using a random or sequential number generator[,]” 47 U.S.C. §
227(a)(1)(A), and the capacity “to dial such numbers[,]” id. § 227
(a)(1)(B). The District Court concluded that the dialing systems used
by LBD meet only the first of these two statutory requirements and
therefore are not ATDSs. Because we determine that LBD’s systems
meet both statutory requirements, we conclude that the systems
qualify as ATDSs. Accordingly, we VACATE the District Court’s
judgment and REMAND the cause for further proceedings consistent
with this opinion.




                                   2
                                   C.K. Lee, Lee Litigation Group, PLLC, New
                                   York, NY, for Plaintiff-Appellant.

                                   Raymond J. Aab, New York, NY, for
                                   Defendant-Appellee.




JOSÉ A. CABRANES, Circuit Judge:

       In 1991, Congress set out to cure America of that “scourge of
modern civilization”: telemarketing. 1               Alarmed that unsolicited
advertising calls were inundating the phones of average Americans, it
passed       the     Telephone         Consumer    Protection   Act     (“TCPA”), 2
prohibiting certain kinds of calls made without the recipient’s prior
consent. Specifically, the TCPA permits a recipient to sue any caller if
that caller used an automatic telephone dialing system (“ATDS”) to
reach the recipient’s cell phone, with some exceptions. 3 By creating
such a private cause of action, the hope was that telemarketers would

       1 These oft-quoted words come from the Telephone Consumer Protection
Act’s lead sponsor, Senator Ernest F. Hollings. Painting the picture more fully,
Senator Hollings noted that telemarketers “wake us up in the morning; they
interrupt our dinner at night; they force the sick and elderly out of bed; they hound
us until we want to rip the telephone right out of the wall.” 137 Cong. Rec. 30,821
(1991).
       2   47 U.S.C. § 227.
       3   See id. § 227(b)(1), (3).




                                            3
be deterred from undertaking ATDS-fueled advertising campaigns—
and that American cell phone users would have fewer “rings” and
“buzzes” interrupting their days.

       Predictably, the TCPA has created much litigation from
consumers seeking to redress the all-too-common injury of having
received an unwanted phone call or text message. 4 But what is at heart
a straightforward law—giving individuals a right to sue for this kind
of intrusive advertising—has become complex to enforce.

       This is because of a simple definitional question that pervades
TCPA litigation in our Circuit and others: what exactly is an ATDS? 5

       It is this very question that is before us here.




       4  It is undisputed that “[a] text message to a cellular telephone . . . qualifies
as a ‘call’ within the compass of [the TCPA].” Campbell-Ewald Co. v. Gomez, 136 S.
Ct. 663, 667 (2016). Moreover, an unwanted text message is, for standing purposes,
an injury-in-fact. See Melito v. Experian Mktg. Solutions, Inc., 923 F.3d 85, 93 (2d Cir.
2019) (noting that “text messages, while different in some respects from the receipt
of calls or faxes specifically mentioned in the TCPA, present the same ‘nuisance and
privacy invasion’ envisioned by Congress when it enacted the TCPA”).
       5  A split has recently emerged on precisely this question, with several
Courts of Appeals reaching different conclusions on whether an ATDS can pull
numbers from a stored list when it automatically dials, or whether it must
randomly or sequentially generate those numbers. The Ninth Circuit, which we
follow here, concluded that an ATDS can, indeed, make calls from stored lists. See
Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). The Seventh, Eleventh,
and Third Circuits have concluded otherwise. See Gadelhak v. AT&T Servs., Inc., 950
F.3d 458 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301 (11th Cir.
2020); Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018).




                                           4
        Plaintiff-Appellant Radames Duran (“Duran”) claims that he
received, over the course of more than a year-and-a-half, hundreds of
unsolicited text messages from Defendant-Appellee La Boom Disco
(“LBD”), a nightclub in Queens, New York, all sent using ATDSs. LBD
acknowledges that it sent the messages, but counters that its actions
were not prohibited by the TCPA because the texting platforms it used
to send them were not, in fact, ATDSs. Of course, only one party can
be right: either LBD used ATDSs, or it did not. If LBD did do so, then
it is liable to Duran under the TCPA. But if LBD did not do so—if it
used some non-ATDS technology to send its texts—then Duran has no
case.

        So which is it?

                          I. BACKGROUND

        To arrive at a conclusion, we must start by going back to March
2016, when Duran first took a trip out to the club.

        Around that time, Duran had seen an LBD Facebook
advertisement inviting interested club-goers to text a code to a
designated phone number in order to secure free admission to a party,
which he voluntarily did. From that point on, his number was on a list
that LBD maintained, and he would receive, according to his
complaint, “anywhere from 7 to 15 messages a month” totaling “at
least 300 unsolicited text messages” overall. 6 These text messages,



        6   App. 16.




                                   5
some of which were produced for the District Court, featured
advertisements for LBD, describing events that would take place there.

      Over a year-and-a-half after the texts started, Duran brought a
putative class action against LBD in the United States District Court
for the Eastern District of New York (Allyne R. Ross, Judge), on behalf
of himself and others similarly situated, seeking damages under the
TCPA for each message received. He claimed that the messages were
sent without his consent and that they were sent using an ATDS,
triggering TCPA-liability.

      LBD responded by denying that it violated the TCPA. It
conceded that the texts were sent (though by its count, there were only
121, not somewhere near 300). Still, LBD argued that no matter the
number, the messages were properly conveyed, since the technologies
used to send them were not covered by the statute. As LBD explained,
it sent the messages using two online systems: the ExpressText and EZ
Texting Programs (jointly, the “programs”). Although these programs
permitted LBD to blast out text messages to hundreds of numbers at
once, they were not ATDSs, according to LBD, because, among other
things, they required too much human intervention when dialing.
Contrary to Duran’s claims, LBD argued that the programs lacked the
critical feature of those dialing systems regulated by the TCPA. Simply
put, they were not automatic.




                                  6
       The District Court agreed. 7 It granted summary judgment for
LBD, deciding that the programs LBD used to text Duran were not, as
a matter of law, ATDSs. In making its determination, the District Court
concluded that what sets apart an ATDS from a non-ATDS is whether
a human determines the time at which a text message gets sent out.
Accordingly, it held that “because a user determines the time at which
the ExpressText and EZ Texting programs send messages to recipients,
they operate with too much human involvement to meet the definition
of an autodialer.” 8

       Duran appealed to this Court, seeking vacatur of the judgment
on the basis that the District Court misinterpreted the TCPA. Since
Duran’s appeal presents a pure question of statutory interpretation,
we now review the District Court’s judgment de novo, coming to our
own conclusion about what an ATDS is. 9




       7   Duran v. La Boom Disco, Inc., 369 F. Supp. 3d 476 (E.D.N.Y. 2019).
       8   Id. at 492.
       9  See United States v. Williams, 733 F.3d 448, 452 (2d Cir. 2013)
(“Interpretations of statutes are pure questions of law, and we therefore review
[them] de novo. . . .”).




                                           7
                                II. DISCUSSION

       Generally, the TCPA prohibits the use of ATDSs to produce
unwanted phone calls or text messages. 10 Individuals who receive
ATDS-generated calls or text messages can sue the sender under the
TCPA for at least $500 for each unwanted call or text—and perhaps
more if the sender knowingly violates the statute. 11

       In determining whether a dialing system qualifies as an ATDS,
we begin, as we must, with the language of the statute. 12 According to
the TCPA, a dialing system qualifies as an ATDS if it has two
concurrent capacities. First, it must have the “capacity . . . to store or
produce telephone numbers to be called, using a random or sequential




       10    “It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United States—(A) to
make 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 or an artificial or prerecorded voice—(i) to any emergency telephone
line . . . ; (ii) to the telephone line of any guest room or patient room of a
hospital . . . ; (iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio common carrier
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 or guaranteed by the
United States . . . .” 47 U.S.C. § 227(b)(1).
       11   Id. § 227(b)(3).
       12   See Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 412 (2012)
(“We begin where all such inquiries must begin: with the language of the statute
itself.” (internal quotation marks omitted)).




                                          8
number generator[.]” 13 Second, it must have the “capacity . . . to dial
such numbers.” 14

      But this statutory language leaves much to interpretation. If the
numbers are stored, must they be stored “using a random or
sequential number generator” (whatever that might mean)? Or is it
only that the numbers may be produced using such a number-
generator, and that they can be stored in any way possible?

      And what does it mean that the ATDS must be able to “dial such
numbers” that have been stored or produced? If a human clicks “send”
in a dialing system in order to initiate a call or text message
campaign—one in which thousands of calls and texts are sent out at
once—is it the case that the human “dialed” each number? Or did the
dialing system dial on its own, thereby qualifying as an ATDS?

      These technical questions are not easily resolved. They require
close attention to Congress’s intent, as expressed in the particular
language of the statute, as well as to the interpretation of the statute
over the last two decades by the Federal Communications
Commission (“FCC”).

      As explained above, LBD argues that its programs are not
ATDSs, since they lacked both capacities required by the statute, and
the absence of either one is sufficient to render the programs non-
ATDSs. Duran argues the opposite—that the programs had the

      13   47 U.S.C. § 227(a)(1)(A).
      14   Id. § 227(a)(1)(B).




                                       9
capacity to both store numbers and to dial them, and thus qualify as
ATDSs.

       We review these claims in turn, first assessing (1) whether LBD’s
programs had the “capacity . . . to store or produce telephone numbers
to be called, using a random or sequential number generator[,]” and
then (2) whether they had the “capacity . . . to dial such numbers.”

       (1) The “capacity . . . to store or produce telephone numbers to
            be called, using a random or sequential number generator”

       Did LBD’s ExpressText and EZ Texting programs have the
“capacity . . . to store or produce telephone numbers to be called, using
a random or sequential number generator”?

       There are at least two ways of answering this question, each
based on a different approach to interpreting the statute. 15

       The first approach suggests that the programs lacked this first
capacity required to be ATDSs because they only dialed numbers from
prepared lists—that is, from lists that had been generated and
uploaded to the programs by humans. Since such prepared lists are
not, according to this interpretation, “store[d] or produce[d]” with the


       15 We note that there are “at least” two ways to interpret the statute because
the Seventh Circuit showed that there are as many as four (and possibly more). See
Gadelhak, 950 F.3d at 463–64. However, we focus on the two interpretations that, in
our view, arise most naturally from the statute’s language, and that have been
adopted by our sister circuits. Compare id. at 460 (adopting the first approach) and
Glasser, 948 F.3d at 1306 (same) with Marks, 904 F.3d at 1052 (adopting the second
approach).




                                         10
use of a “random or sequential number generator[,]” their use renders
both programs, by definition, non-ATDSs.

      The second approach suggests that both programs had the first
capacity required to be considered ATDSs. According to this
approach, the clause requiring the use of “a random or sequential
number generator” modifies only the verb “produce” in the statute,
but not the word “store.” This means that the numbers to be called by
an ATDS may be “stored” or they may be “produced,” but only if they
are produced must they come from “a random or sequential number
generator[.]” Since the numbers here are “stored” by the programs,
they are not, under this interpretation, subject to the requirement that
they be randomly or sequentially generated. Rather, the mere fact that
the programs “store” the lists of numbers is enough to render them
ATDSs.

      Since both parties agree that the numbers were generated by
humans and uploaded to the programs, we must decide whether the
statute tolerates such activity by an ATDS. If we read the statute to
mean that, in order for a program to qualify as an ATDS, the phone
numbers it calls must be stored using a random- or sequential-
number-generator or produced using a random- or sequential-
number-generator, then we must conclude that LBD’s programs are
not ATDSs, since the programs called numbers stored in a human-
generated list. But if we read the statute to mean that, in order for a
program to qualify as an ATDS, the phone numbers it calls must be
either stored in any way or produced using a random- or sequential-




                                  11
number-generator, then we must conclude that the programs here can
qualify as ATDSs.

        On de novo review, we conclude, for several reasons, that the
second approach to the statute’s interpretation is correct, and that the
programs here have the first capacity required to be ATDSs—the
“capacity . . . to store or produce telephone numbers to be called, using
a random or sequential number generator[.]”

        (a)

        To begin with, the second interpretation of the statute avoids
rendering any word in the statute “surplusage.” 16 The potential
problem of surplusage in the TCPA becomes apparent when
considering how the first approach to interpreting it would work. As
discussed above, under the first approach, an ATDS would need to be
able either to “store” or “produce” numbers using a random- or
sequential-number-generator. But what this approach cannot explain
is why the statute, in order to achieve its ends, includes both verbs.
Common sense suggests that any number that is stored using a
number-generator is also produced by the same number-generator;

        16See, e.g., Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029, 1037 (2019)
(noting that courts “generally presum[e] that statutes do not contain surplusage”
(quoting Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 299, n.1.
(2006) (alteration in original)); see also Corley v. United States, 556 U.S. 303, 314 (2009)
(noting that “one of the most basic interpretative canons” is that a “statute should
be construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant” (quoting Hibbs v. Winn, 542 U.S.
88, 101 (2004) (internal quotation marks omitted from second quotation))).




                                            12
otherwise, it is not clear what “storing” using a number-generator
could mean. 17 It would be odd for Congress to include both verbs if,
together, they merely created redundancy in the statute. “Where
possible we avoid construing a statute so as to render a provision mere
surplusage[,]" deferring instead to another interpretation of the statute
if one exists. 18

       Fortunately, another interpretation of the statute does exist here.
Following this other approach, the verbs “store” and “produce” take
on different meanings, since “produce” is modified by the clause after
the comma in the statute—“using a random or sequential number
generator”—while “store” is not. Under this approach, a dialing
system can be an ATDS if it can “store” numbers, even if those
numbers are generated elsewhere, including by a non-random- or
non-sequential-number-generator—such as a person. At the same
time, a dialing system can be an ATDS if it can “produce” numbers
“using       a   random        or   sequential      number         generator[.]”   This
interpretation, accordingly, rescues the statute from the problem of
surplusage: each verb is independently significant to the creation of a
comprehensive statute, one that regulates dialing systems that can
store numbers of all kinds or that can produce numbers in a particular
way (randomly or sequentially).


       17 Other courts have come up with unsatisfactory answers to this surplusage
problem. See, e.g., Glasser, 948 F.3d at 1307 (noting that there is “some redundancy
between store and produce” because “a device that produces telephone numbers
necessarily stores them,” but tolerating that redundancy nonetheless).
       18   Burrus v. Vegliante, 336 F.3d 82, 91 (2d Cir. 2003).




                                            13
       (b)

       The purpose and structure of the TCPA further reinforce our
interpretation of the plain language of the statute. For instance,
although the TCPA creates a general prohibition on ATDS calls and
texts, it does provide several exceptions for when an ATDS may be
appropriately used. Under one such exception, an ATDS may be used
in order “to collect a debt owed to or guaranteed by the United
States[.]” 19

       But does that mean that an ATDS must reach such debtors only
by calling numbers derived from random- or sequential-number-
generators? That result is highly unlikely, for it would be highly
inefficient—requiring the Government to call numbers haphazardly
until it luckily found someone who owed it money.

       Instead, the only way this exception makes sense is if an ATDS
can make calls or texts using a human-generated list of phone
numbers. 20 Indeed, in creating the exception, Congress clearly


       19   47 U.S.C. § 227(b)(1)(A)(iii).
       20 The Eleventh Circuit addressed this argument by noting that the statute
also prohibits calls using a prerecorded or artificial voice—and that these calls are
the ones Congress was permitting when it amended the TCPA to allow
debt-collection calls, not calls from an ATDS. See Glasser, 948 F.3d at 1311-12. But
the language of the statute does not make that distinction. And, arguably for that
reason, the FCC, when promulgating new rules to explain the debt-collection
exception, specifically noted that the “exception . . . allows the use of an autodialer,
prerecorded-voice, and artificial-voice when making calls[,]” not just prerecorded-
or artificial-voice as the Eleventh Circuit suggests. In re Rules and Regulations




                                             14
recognized that ATDSs can store lists of such numbers—i.e., the
numbers of debtors—so that they can be effectively used in order to
collect Government debts.

       Accordingly, if ATDSs are permitted to store lists of human-
generated numbers for the purpose of making debt-collection calls,
and because Congress did not authorize the use of stored lists solely
for that purpose, it must follow that Congress also expected and thus
permitted ATDSs to be able to store lists of human-generated numbers
generally.

       (c)

       The aptness of this interpretive approach is also confirmed by
the FCC’s consistent interpretation of the TCPA, 21 including in the




Implementing the Telephone Consumer Protection Act of 1991, 31 FCC Rcd. 9074, 9116
(2016) (emphasis added).

        The TCPA expressly authorizes the FCC to “prescribe regulations to
       21

implement the requirements” of the statute. 47 U.S.C. § 227(b)(2).

        We need not decide what degree of deference, if any, we owe to FCC Orders
interpreting the TCPA (a question the Supreme Court recently raised, but did not
answer, in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051,
2055 (2019) (asking whether a 2006 Order interpreting the TCPA is equivalent to a
legislative or an interpretive rule)). Instead, we merely treat the FCC Orders as
persuasive authority, providing further confirmation for the interpretation that, as
set forth in section (a) of this opinion, is commanded by the text of the statute.




                                        15
rules it promulgated pursuant to the TCPA in 2003, 22 2008, 23 and
2012. 24 While other courts have claimed that those rules were
invalidated by our decision in King v. Time Warner Cable Inc. 25 and the
D.C. Circuit’s decision in ACA International v. Federal Communications
Commission 26—the latter of which did, in fact, set aside a portion of the
2015 FCC rules that had been issued on ATDSs 27—this is not the case.
To the contrary, the 2003, 2008, and 2012 Orders, among others,
survived our decision in King and the D.C. Circuit’s decision in ACA
International, and continue to inform our interpretation of the TCPA
today. 28


       22 In re Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, 18 FCC Rcd. 14,014 (2003) (“2003 Order”).
       23 In re Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, 23 FCC Rcd. 559 (2008) (“2008 Order”).
       24 In re Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, 27 FCC Rcd. 15,391 (2012) (“2012 Order”).
       25   894 F.3d 473 (2d Cir. 2018).
       26   885 F.3d 687 (D.C. Cir. 2018).
       27 In re Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, 30 FCC Rcd. 7961 (2015) (“2015 Order”).
       28 The District Court in the instant case reached the correct conclusion on
this issue, arguing that King did not invalidate the pre-2015 Orders. See Duran, 369
F. Supp. 3d at 486-89. Not only did we not mention the 2003, 2008, and 2012 Orders
in our King decision, but we specifically declined to consider the interpretation of
the term “automatic telephone dialing system”—which those Orders help to clarify.
Instead, we limited our analysis in King to the interpretation of the word “capacity”
as it appears in the TCPA.




                                             16
       The FCC has long suggested that the TCPA be interpreted
broadly—in such a way that it covers systems which dial from stored
lists—so that the statute’s prohibitions maintain their general
deterrent effect on telemarketers, even when telemarketers switch to
newer        non-random-           or      non-sequential-number-generating
technology. For example, in 2003, the FCC endorsed just such a broad
interpretation when it said that “[w]e believe the purpose of the
requirement that equipment have the ‘capacity to store or produce
telephone numbers to be called’ is to ensure that the prohibition on
autodialed calls not be circumvented.” 29 It made this statement in the
context of explaining that the statute applies to “predictive dialers”—
dialing systems that make calls or send texts from preset “database[s]


        Furthermore, while it is true that ACA International noted that the 2015
Order contained an apparently self-contradictory explanation of what an ATDS
could be, its decision to set aside the 2015 Order did not invalidate any prior Orders.
The problem with the 2015 Order’s definition of an ATDS, according to the D.C.
Circuit, is that it at once suggested that ATDSs cannot call from stored lists and that
they also can call from stored lists. As the D.C. Circuit said, either interpretation
could work, but not both interpretations simultaneously. ACA Int’l, 885 F.3d at 702-
03. However, as we discuss below, the earlier Orders do not suffer from the same
internal contradiction, since they are clear that ATDSs can dial from stored lists. As
a result, there is no reason to think that the D.C. Circuit’s decision to invalidate the
2015 Order on this ground also invalidated those that came before it.
       29   2003 Order, at 14,092-93. The FCC stated that to permit calling from stored
lists, just because they were produced by a human rather than a number-generator,
“would lead to an unintended result. Calls to emergency numbers, health care
facilities, and wireless numbers would be permissible when the dialing equipment
is paired with predictive dialing software and a database of numbers, but
prohibited when the equipment operates independently of such lists and software
packages.” Id. at 14,092.




                                          17
of numbers” rather than by generating numbers on their own. 30 In so
stating, the FCC made clear that a dialing system that merely stores a
list of numbers, even if it does not store or produce it using a random-
or sequential-number-generator, can still qualify as an ATDS.

      As the FCC additionally clarified in 2012, the statutory
definition of an ATDS “covers any equipment that has the specified
capacity to generate numbers and dial them without human
intervention regardless of whether the numbers called are randomly
or sequentially generated or come from calling lists.” 31 The FCC’s
interpretation of the statute is consistent with our own, for only an
interpretation that permits an ATDS to store numbers—no matter how
produced—will also allow for the ATDS to dial from non-random,
non-sequential “calling lists.” As the FCC implied, it does not matter
that the lists are produced by human-generators rather than
mechanical number-generators. What matters is that the system can
store those numbers and make calls using them.

       (d)

      For all of these reasons—to avoid the problem of surplusage, to
effectuate Congress’s intent in passing the statute as enacted, and to
follow the FCC’s long-standing and still valid interpretation of the
TCPA—we hold that an ATDS may call numbers from stored lists,
such as those generated, initially, by humans. Since there is no factual


      30   Id. at 14,091.
      31   2012 Order, at 15,392, n.5 (latter emphasis added).




                                          18
dispute that the ExpressText and EZ Texting programs call from just
such lists of numbers, they, too, have the first capacity—the capacity
to “store” numbers—required under the TCPA to be considered
ATDSs.

      (2) The “capacity . . . to dial such numbers”

      The next question is whether the ExpressText and EZ Texting
programs also have the second capacity required by the statute to be
ATDSs—the “capacity . . . to dial such numbers.”

      The FCC has stated that this capacity exists when the dialing
system can “dial numbers without human intervention.” 32 Indeed, this
ability to dial without human intervention is an ATDSs’ “basic
function.” 33 But determining how much human intervention is too
much for a system to qualify as an ATDS is not always easy. Any
system—ATDSs            included—will           always    require       some   human
intervention somewhere along the way, even if it is merely to flip a
switch that turns the system on.

      LBD argues that the programs at issue can only dial with a level
of human intervention that makes them non-automatic. Specifically,
LBD argues that the programs are not ATDSs because they require a
human to upload the message to be sent, to determine the time at
which the message gets sent, and to manually initiate the sending. The
District Court agreed, finding the second factor—that a human

      32   2003 Order at 14,092; see also 2012 Order, at 15,392, n.5.
      33   2003 Order at 14,092.




                                           19
determined the time at which the messages were sent out—to be
dispositive.

      Duran argues, to the contrary, that the programs do not dial
with “human intervention,” but do so automatically. Even though a
human manually initiates the text campaign and determines the time
at which the campaign takes place, the actual dialing—the connecting
of one phone to another—occurs entirely by machine. Therefore, by
his interpretation, the programs are both ATDSs.

      We are thus asked to decide how much intervention is tolerable
under the statute before an ATDS becomes a non-ATDS. We conclude
that Duran is correct, and that the programs here are both ATDSs.

      (a)

      In trying to develop some criteria for what constitutes too much
human intervention, the District Court decided that the most
important factor was whether a human determined the time at which
a dialing system sent out a call or text. 34 It derived this factor, it said,
from the FCC’s 2003 Order—the very one that interpreted the TCPA
to cover “predictive dialers,” which call from stored lists of numbers.
According to that Order, “the principal feature of predictive dialing
software is a timing function,” as predictive dialers dial “at a rate to
ensure that when a consumer answers the phone, a sales person is
available to take the call.” 35 Thus, the District Court seems to have

      34   See Duran, 369 F. Supp. 3d at 490.
      35   2003 Order at 14,091.




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concluded that the principal feature of all ATDSs must also be a timing
function—or else predictive dialers would not be considered ATDSs.
Indeed, it stated that “the human-intervention test turns not on
whether the user must send each individual message, but rather on
whether the user (not the software) determines the time at which the
numbers are dialed.” 36

      We do not agree that the human-intervention test turns solely
on this timing factor. While it may be true, as the 2003 Order states,
that the key feature of a predictive dialer is a timing function, the
programs used by LBD here are not predictive dialers, a fact that the
District Court readily acknowledges. 37 Therefore, any controlling
reliance on the fact that LBD’s programs do not automatically
determine the time at which messages are sent out is misplaced. The
District Court, in stressing the importance of the “timing function” to
the human-intervention test, seems to imply that only predictive
dialers can be considered ATDSs. But the TCPA predates the use of
predictive dialers—which is exactly why the FCC felt compelled to
specify its application to this new technology in 2003. To assume that
a key feature of predictive dialers must be a key feature of all ATDSs,
especially when we know that many early ATDSs did not have the
ability to automatically determine the time at which a call or text
would get sent out, is anachronistic at best.




      36   Duran, 369 F. Supp. 3d at 490 (emphasis in original).
      37   See id. at 491.




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      (b)

      There must be some other criterion, then, that guides the
“human intervention” analysis. To locate one, we look to the statutory
text and the FCC’s commentary, which both specify that an ATDS is
different from a non-ATDS merely because of its ability to “dial”
numbers automatically or, as the FCC has put it, without human
intervention.

      But what does it mean to dial? Dialing a phone, after all, is not
the same as it used to be. Although the verb “to dial” may have
originally meant to rotate an actual dial, it is more commonly used
today to refer to the specific act of “inputting” some numbers to make
a telephone operate, and to connect to another telephone. By 2014, the
Oxford English Dictionary was able to confirm this common usage,
noting that to dial generally means “[t]o enter (one or more digits or
letters) by turning the disc of a telephone dial or (later) by pushing
buttons on a keypad or touch screen to make a telephone call[.]” 38

      Merely clicking “send” or an equivalent button in a text
messaging program—much like the programs at issue here—is not the
same thing as dialing a number. When a person clicks “send” in such
a program, he may be instructing the system to dial the numbers, but




      38   Dial, OXFORD ENGLISH DICTIONARY (3d ed. 2014).




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he is not actually dialing the numbers himself. His activity is one step
removed. 39

       Indeed, if it were otherwise—if merely clicking “send” on its
own amounted to dialing—then it is hard to imagine how any dialing
system could qualify as automatic. Presumably, when one uses a
dialing system, a “send” button or an “initiate phone campaign”

       39  Critics of our approach may suggest that our definition of “dial” is out of
step with common usage. After all, many people now use so-called smartphones to
call or text their “contacts,” and they often do so without directly “inputting” any
specific numbers—but instead by merely selecting a “contact” from a digital
phonebook or by asking Siri or Alexa to accomplish the task. These critics may
suggest that, by relying on an antiquated notion of “dialing,” we are
unintentionally defining all smartphones as ATDSs, since clicking on a name in a
digital phonebook to make a phone call or send a text message looks the same as
clicking “send” to initiate a text campaign. No inputting of numbers takes place.

        But, in fact, these operations are quite different. Clicking on a name in a
digital phonebook to initiate a call or text is a form of speed-dialing or constructive
dialing that is the functional equivalent of dialing by inputting numbers. When we
save a contact in a smartphone, we are merely instructing the phone to replace the
10-digit phone number with a single button (i.e. one can click on the name “John”
to accomplish the same task as inputting all 10 digits of John’s number). The contact
card in a smartphone is a proxy or a shortcut for a number (just like the single digit
“0” was traditionally a proxy for dialing the operator). When one clicks on the card,
one is constructively dialing the attached number. Therefore, when one sends a text
message using a smartphone—which involves clicking on the card and then clicking
a “send” button—one has already accomplished the dialing.

       However, when one clicks on the “send” button in the programs at issue
here, one is not dialing a particular attached number beforehand or afterwards.
Simply put, the “send” button, unlike a contact card, is not a short-cut for dialing a
particular person. Rather, clicking “send” is accomplishing a different task
altogether: it is telling the ATDS to go ahead and dial a separate list of contacts,
often numbering in the hundreds or thousands.




                                          23
button—or even merely an “on” switch—must be operated by a
human somewhere along the way. Under LBD’s approach, any such
operation might be enough to remove the dialing system from the
ATDS category, since there would be too much human intervention
for the dialing system to be truly automatic. But this approach seems
to defy Congress’s ultimate purpose in passing the TCPA, which was
to embrace within its scope those dialing systems which can blast out
messages to thousands of phone numbers at once, at least cost to the
telemarketer.

      We thus recognize that clicking “send” or some similar button—
much like flipping an “on” switch—is not the same thing as dialing,
since it is not the actual or constructive inputting of numbers to make
an individual telephone call or to send an individual text message.
Clicking “send” does not require enough human intervention to turn
an automatic dialing system into a non-automatic one.

      Accordingly, since the programs here required only a human to
click “send” or some similar button in order to initiate a text campaign,
we conclude that the programs did not require human intervention in
order to dial. Therefore, LBD’s programs have the second capacity
necessary to be considered ATDSs. They both can dial numbers on
their own—which is to say, automatically.




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                           III. CONCLUSION

      To summarize, we hold as follows:

      (1) The EZ-Texting and ExpressText programs have the first
         “capacity” necessary to qualify as automatic telephone
         dialing systems, or ATDSs, because they store lists of
         numbers, as is permitted under the Telephone Consumer
         Protection Act;

      (2) The EZ-Texting and ExpressText programs have the second
         “capacity” necessary to qualify as automatic telephone
         dialing systems, or ATDSs, because they dial those stored
         numbers without human intervention, as is required by the
         Telephone Consumer Protection Act;

      (3) Having both necessary “capacities” within the meaning of
         the Telephone Consumer Protection Act, the EZ-Texting and
         ExpressText programs are automatic telephone dialing
         systems, or ATDSs, under the statute.

      Accordingly, we VACATE the District Court’s judgment and
REMAND the cause for further proceedings consistent with this
opinion, including the calculation of such penalties as may be
appropriate in the circumstances presented.




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