The Court of Appeals for the Eleventh Circuit in Atlanta, Georgia held in a majority opinion that the Federal Telephone Consumer Protection Act (TCPA), which in general prohibits the use of Automatic Telephone Dialing Systems to play recorded messages and send text messages without the prior consent of the subscriber, applies only to systems that use randomly or sequentially generated numbers with no human intervention. It does not apply to systems that automatically dial a stored list of telephone numbers.

The court explained that when Congress enacted the TCPA in 1991, its focus was to eradicate the telemarketing method widely used at that time – dialing randomly or sequentially generated numbers. Only in 2003 did the Federal Communications Commission (FCC) issued its modified interpretation that the law also applies to numbers dialed from a database of numbers. The FCC did so because it “had watched companies switch from using machines that dialed a high volume of randomly or sequentially generated numbers to using “predictive dialers” that called a list of pre-determined potential customers”. 

The court rejected the FCC’s effort to expand the statute’s coverage through the FCC’s broad interpretation and all-encompassing view of the law’s purpose. 

The Eleventh Circuit’s holding is impactful as it could allow companies to transmit unsolicited marketing text messages (SMS) to subscribers listed in a database of numbers, without having to obtain their prior consent. But the holding conflicts with the Ninth Circuit’s 2019 holding in Marks v. Crunch San Diego, LLC, which supports the FCC’s expansive view. This circuit split may lead the way for a Supreme Court review of the matter. 

CLICK HERE to read the Eleventh Circuit’s decision in Glasser v. Hilton Grand Vacations Company, LLC.