Commas And Human Conduct - Eleventh Circuit Severely Restricts TCPAS Application

On January 27, 2020, the US Court of Appeals for the Eleventh Circuit severely limited the application of the Telephone Consumer Protection Act (TCPA) ¹. This creates a circuit split with the Ninth Circuit, and will likely result in fewer TCPA cases filed in the Eleventh Circuit jurisdiction of Georgia, Alabama and Florida.

The TCPA prohibits the use of an automatic telephone dialing system (ATDS) to call a party without prior express written consent. Section 227(a)(1) of the TCPA defines an ATDS as "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 central question is: Does the clause "using a random or sequential number generator" modify both "to store" and "[to] produce," or only one? In plain English, is a calling platform required to have the capacity to randomly and sequentially generate numbers in order to qualify as an ATDS? The answer, at