Gadelhak v. AT&T Corp.

Filing 86

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Plaintiff Gadelhak's motion 67 for partial summary judgment is denied and Defendant AT&T's motion 50 for summary judgment is granted. A separate AO-450 judgment shall be entered. The status hearing of 04/04/2019 is vacated. Civil case terminated. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALI GADELHAK, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
AT&T SERVICES, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 17-cv-01559
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Ali Gadelhak brought this proposed class action after he received
automated text messages from Defendant AT&T Services, Inc. (AT&T), allegedly in
violation of the Telephone Consumer Protection Act (TCPA).1 Gadelhak and AT&T
now cross-move for summary judgment. The motions present the parties’
disagreement over the proper definition of the statutory term “automated telephone
dialing system,” and whether AT&T employed one when it sent text messages to
Gadelhak and others. For the reasons explained below, the Court grants AT&T’s
motion and denies Gadelhak’s motion.
I. Background
In deciding cross motions for summary judgment, the Court views the facts in
the light most favorable to the respective non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). So when the Court

1This

Court has subject matter jurisdiction over the case under 28 U.S.C. § 1331 and
29 U.S.C § 1132.

evaluates Gadelhak’s summary judgment motion, AT&T gets the benefit of
reasonable inferences; conversely, when evaluating AT&T’s motion, the Court gives
Gadelhak the benefit of the doubt.
AT&T is a major telecommunications corporation. R. 22, Answer ¶¶ 6, 7. Since
around 2015, AT&T has engaged in a program called the AT&T Customer Rules
Feedback Tool, also known (at least to the parties) as “TACRFT.” R. 70.8, Lyon Dep.
at 12:9-12; R. 52.2, Lyon Dec. ¶2. According to AT&T, the program sends surveys to
customers of its corporate affiliates—DIRECTV, for example—via text message in
order to assess customers’ recent interactions with service representatives. Lyon Dec.
¶¶ 2-4. At the end of each survey, AT&T also includes an advertisement for its
smartphone application, MyAT&T. R. 70.5, Abel Dep. at 69:21-25.
AT&T employs an automated process to select the numbers to which it sends
the TACRFT surveys. First, a computer system for each AT&T affiliate identifies
customer accounts that have engaged in qualifying transactions with a customer
service representative. Lyon Dep at 35:7-13, 36:15-37:13; Lyon Dec. ¶ 5. Then, each
of those computer systems sends a list of the phone numbers associated with each
flagged account to AT&T’s Market Research Organization for further processing.
Lyon Dep. at 139:21-24. The list of these phone numbers is known as the Gross
Sample List. Id. at 139:21-140:6. This list includes every phone number associated
with a flagged account, rather than just the phone number that engaged in the
qualifying transaction. Lyon Dep. at 21:6-22:2; R. 74, Def.’s Resp. PSOF ¶¶ 7, 8. Once
the Gross Sample List is compiled, a computer system within the Market Research

2

Organization narrows down the list to one number for each account by (1) removing
any non-cellular numbers; and (2) selecting the first cellular number listed for each
account. Lyon Dep. at 140:7-25; R. 74.3, Lyon Dec. II ¶¶ 3-6. This pared-down list is
then sent to AT&T’s outside vendor, Message Broadcast, who sends out preprogrammed text-message surveys previously drafted by AT&T. Lyon Dep. at 57:1416, 130:13-20; R. 70.7, Joiner Dep. at 63:6-12. It is undisputed that a computer, not a
human, compiles the list of telephone numbers to which these surveys are directed.
Def.’s Resp. PSOF ¶¶ 9-11.
Plaintiff Ali Gadelhak lives in Chicago, Illinois and is not a customer of AT&T
or any AT&T affiliate. R. 70.9, Gadelhak Dep. at 81:7-82:4, 84:2-85:14; Def.’s Resp.
PSOF ¶ 38. Gadelhak registered his cell phone number with the Do Not Call list in
May 2014. Gadelhak Dep. at 76:12-77:24. Nonetheless, in July 2016, Gadelhak
received five text messages from AT&T asking survey questions in Spanish. Lyon
Dec., Ex. A, Gadelhak Call Log; Gadelhak Dep., Ex. 33. AT&T insists that TARCRFT
is designed to send text messages only to AT&T customers, so Gadelhak’s number
must have been erroneously listed on an AT&T account. Lyon Dec. ¶ 5; Def.’s Resp.
PSOF ¶ 41.
In February 2017, Gadelhak brought this proposed class action against AT&T
for violations of the Telephone Consumer Protection Act. Gadelhak alleges that AT&T
“negligently, knowingly, and/or willfully contacted” him via text message using an
automated telephone dialing system (ATDS) “without his prior consent.” R. 20,
Compl. ¶ 1. He also alleges that AT&T did the same to others, on whose behalf

3

Gadelhak brings class allegations. Id. ¶¶ 34, 35, 39. Both parties now move for
summary judgment, content to litigate class certification (if Gadelhak were to prevail)
after a decision on summary judgment. In its motion, AT&T asserts that it did not
use an ATDS to send a text message to Gadelhak and thus did not violate the TCPA.
R. 51, Def.’s Br. at 1. For his part, Gadelhak asks the Court to declare as a matter of
law that AT&T’s TACRFT system employs an ATDS. R. 71, Pl.’s Br. at 1-2. Much of
the parties’ dispute boils down to whether the D.C. Circuit’s opinion in ACA
International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) nullified previous FCC orders
defining the term ATDS and, if so, what is the proper definition of that statutory term
under the plain language of the TCPA.
II. Legal Standard
Summary judgment must be granted “if the movant shows that 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). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
summary judgment motions, courts must “view the facts and draw reasonable
inferences in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007) (cleaned up).2 The Court “may not weigh conflicting evidence or
make credibility determinations,” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d

2This

opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).

4

697, 704 (7th Cir. 2011) (cleaned up), and must consider only evidence that can “be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
The party seeking summary judgment has the initial burden of showing that there is
no genuine dispute and that they are entitled to judgment as a matter of law.
Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008). If this burden is met, the adverse party must then “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
II. Analysis
A. Statutory and Regulatory History of the TCPA
To start, it is necessary to set forth the TCPA’s framework. Enacted in 1991,
the TCPA generally prohibits making calls using “any automatic telephone dialing
system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). The statute
defines 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.” § 227(a)(1). This general prohibition has three exceptions:
(1) calls made with “prior express consent;” (2) emergency calls; and (3) calls made to
collect government debts. § 227(b)(1)(A).
The FCC has the authority to promulgate regulations implementing the TCPA.
See ACA International, 885 F.3d at 693. In 2003, the FCC promulgated regulations
that interpreted the term ATDS to include “equipment that dials numbers and, when
certain computer software is attached, also assists telemarketers in predicting when

5

a sales agent will be available to take calls.” In re Rules & Regulations Implementing
the Tel. Consumer Prot. Act of 1991 (2003 Order), 18 FCC Rcd. 14014, 14091-93 ¶¶
131-133 (2003). The Commission referred to these types of devices as “predictive
dialers” and explained that they have “the capacity to store or produce numbers and
dial those numbers at random, in sequential order, or from a database of numbers.”
Id. at 14091 ¶ 131. According to the 2003 Order, telemarketers may have primarily
relied on dialing equipment “to create and dial 10-digit telephone numbers
arbitrarily” in the past, but “to exclude… equipment that use[s] predictive dialing
software from the definition of [ATDS] simply because it relies on a given set of
numbers would lead to an unintended result.” Id. at 14092 ¶¶ 132, 133 (emphasis
added). The Commission reasoned that it made little sense to permit calls to “wireless
numbers… when the dialing equipment is paired with predictive dialing software and
a database of numbers,” but prohibit calls “when the equipment operates
independently of such lists and software packages.” Id. ¶ 133.
The Commission affirmed this interpretation in 2008, explaining that the 2003
Order “found that, based on the statutory definition of [ATDS], the TCPA’s legislative
history, and current industry practice and technology, a predictive dialer falls within
the meaning and definition of autodialer and the intent of Congress.” See In re Rules
& Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2008 Declaratory
Ruling”), 23 FCC Rcd. 559, 566 ¶ 13 (2008). Although a party to the 2008 proceeding
urged the FCC to find that a “predictive dialer meets the definition of autodialer only
when it randomly or sequentially generates telephone numbers, not when it dials

6

numbers from customer telephone lists,” id. at 566 ¶ 12 (emphasis added), the
Commission disagreed, stating that nothing presented by the party “warrant[ed]
reconsideration of [the 2003] findings.” Id. at 567 ¶ 14.
Seven years later, the Commission revisited and again reaffirmed its earlier
take: “predictive dialers, as previously described by the Commission, satisfy the
TCPA’s definition of ‘autodialer.’” In re Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7972 ¶ 10
(2015). The Commission compared predictive dialers to dialers that “utilize random
or sequential numbers instead of a list of numbers” and stated that both “retain the
capacity to dial thousands of numbers in a short period of time.” Id. at 7973 ¶ 14. In
the Commission’s view, any device that “generally has the capacity to store or
produce, and dial random or sequential numbers… even if it is not presently used for
that purpose, including when the caller is calling a set list of consumers,” met the
definition of “autodialer” under the TCPA. Id. at 7972 ¶ 10.
Under the Hobbs Act, this Court, sitting as a district court, does not have the
authority to invalidate the FCC’s rulings, because “[t]he court of appeals … has
exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part) or to determine
the validity of all final orders of the [FCC].” 28 U.S.C. § 2342(1); see also 47 U.S.C. §
402(a) (making § 2342(1) applicable to FCC regulations promulgated under the
TCPA); Blow v. Bijora, 855 F.3d 793, 802 (7th Cir. 2017).3 In ACA International,

3The

Supreme Court is considering this interpretation of the Hobbs Act in PDR
Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705 (oral argument heard on
March 25, 2019). That particular dispute does not impact the Court’s holding here.

7

however, the D.C. Circuit consolidated several Hobbs Act petitions for review of the
2015 Declaratory Ruling and invalidated the Commission’s interpretation of ATDS,
because it “fail[ed] to satisfy the requirement of reasoned decisionmaking.” 885 F.3d
at 703. The D.C. Circuit explained that the 2015 Declaratory Ruling adopted two
irreconcilable definitions of the term ATDS: “A basic question raised by the statutory
definition is whether a device must itself have the ability to generate random or
sequential telephone numbers to be dialed. Or is it enough if the device can call from
database of telephone numbers generated elsewhere? The Commission’s ruling
appears to be of two minds on the issue.” Id. at 701 (emphasis in original). Despite
this holding, the D.C. Circuit declined to define ATDS in its own terms, but stated
that it was permissible for the Commission to adopt either interpretation. “But the
Commission cannot, consistent with reasoned decisionmaking, espouse both
competing interpretations in the same order.” Id. at 703. So the D.C. Circuit
invalidated the 2015 Declaratory Ruling.
B. ACA International’s Scope
In this case, neither party disputes that the Commission’s 2015 Declaratory
Ruling was overturned and invalidated by ACA International. Def.’s Br. at 8; Pl.’s Br.
at 15. AT&T, however, argues that the opinion also invalidated the Commission’s
prior rulings defining ATDS, Def,’s Br. at 8-11, while Gadelhak asserts that the case’s
holding is limited to the 2015 Declaratory Ruling, Pl.’s Br. at 15-20. A close read of
ACA International and the 2015 Declaratory Ruling make clear that AT&T has the
better argument.

8

It is true that the petitions in ACA International sought review only of the 2015
Declaratory Ruling, but the petitions zeroed-in on four specific aspects of the order.
ACA International, 885 F.3d at 693-94. Most pertinent to this case was the
Commission’s interpretation of what functions a system needs to have in order to
qualify as ATDS. On that question, the Commission argued “that the issue was
resolved in prior agency orders—specifically, declaratory rulings in 2003 and 2008,”
and that it was too late to “raise a challenge [to those orders] by seeking review of a
more recent declaratory ruling that essentially ratifies the previous ones.” Id. at 701.
The D.C. Circuit disagreed and proceeded to review all “pertinent pronouncements”
from the Commission on the subject. Id. The court determined that “[t]he agency’s
prior rulings left significant uncertainty about the precise functions an autodialer
must have the capacity to perform,” and then also set aside the Commission’s
“treatment” of the qualifying functions of an ATDS. Id. at 701, 703.
The Commission’s own language in the 2015 Declaratory Ruling also bolsters
the

interpretation

that

ACA

International

nullified

the

FCC’s

previous

pronouncements defining ATDS. The 2015 Declaratory Ruling states that the
Commission “reaffirm[s]” previous statements, and refers specifically to the 2003
Declaratory Ruling. 2015 Declaratory Ruling, 30 FCC Rcd. at 7971 ¶ 10 & n. 39; see
also ACA International, 885 F.3d at 694 (“The Commission reaffirmed prior orders
deciding that ‘predictive dialers’—equipment that can dial automatically from a given
list of telephone numbers using algorithms to predict ‘when a sales agent will be
available’—qualify as autodialers.”).

9

Moreover, the D.C. Circuit’s concern in ACA International—that the 2015
Declaratory Ruling, “in describing the functions a device must perform to qualify as
an autodialer, fails to satisfy the requirement of reasoned decisionmaking”—equally
applies to the 2003 and 2008 orders. 885 F.3d at 703. The 2003 Order made clear that
the Commission saw a difference between generating and dialing random or
sequential numbers, on the one hand, and dialing from a list of numbers on the other.
2003 Order, 18 FCC Rcd. at 14092 ¶ 132; see also ACA International, 885 F.3d at 702.
But it then went on to state that, “to exclude from these restrictions equipment that
use predictive dialing software from the definition of ‘automated telephone dialing
equipment’ simply because it relies on a given set of numbers would lead to an
unintended result.” Id. at 14092 ¶ 133. The 2008 Declaratory Ruling held the same,
as it simply “affirm[ed]” the interpretation of ATDS promulgated in the 2003 Order.
2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 12. With the Commission’s repeated
affirmations of the prior orders, this Court holds, as other courts in this District have,
that ACA International invalidated the Commission’s understanding of the term
ATDS as articulated in the 2015 Declaratory Ruling, as well as the 2008 Declaratory
Ruling and the 2003 Order. See Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927,
935 (N.D. Ill. 2018); Johnson v. Yahoo!, Inc., 346 F. Supp. 3d 1159, 1161 (N.D. Ill
2018).
C. Defining ATDS Under the TCPA
Because ACA International invalidated the Commission’s prior orders defining
the term ATDS—and also declined to articulate their own definition of the term—the

10

Court moves on to interpreting the TCPA unburdened by the Commission’s
definitions. Here, the pertinent question is really whether predictive-dialing devices
that lack the capacity to generate numbers either randomly or sequentially, and
instead only dial numbers from a predetermined list, meet the statutory definition of
ATDS. AT&T argues that the statutory text dictates a “no” answer, Def.’s Br. at 1113, while Gadelhak asserts that a device “that stores telephone numbers to be called
and automatically dials those numbers falls within [the] statutory definition,” Pl.’s
Br. at 6 (emphasis in original).
The Court “must begin with [the TCPA’s] text and assume that the ordinary
meaning of that language accurately expresses the legislative purpose.” Our Country
Home Enters., Inc. v. Comm’r, 855 F.3d 773, 791 (7th Cir. 2017) (interpreting 28
U.S.C. § 6330(c)(4)(A)) (cleaned up). In other words, the Court must give the TCPA
its plain meaning. Coleman v. Labor & Indus. Review Comm’n of Wis., 860 F.3d 461,
473 (7th Cir. 2017). To do so, the Court begins with “the language of the statute itself,”
attending to “the specific context in which that language is used.” Scherr v. Marriott
Int’l, Inc., 703 F.3d 1069, 1077 (7th Cir. 2013) (cleaned up) (quoting McNeill v. United
States, 563 U.S. 816, 819 (2011)). And it must “accord words and phrases their
ordinary and natural meanings and avoid rendering them meaningless, redundant,
or superfluous.” Scherr, 703 F.3d at 1077 (cleaned up).
Under the TCPA, an ATDS has “the capacity to store or produce telephone
numbers to be called, using a random or sequential number generator,” and then call
the numbers. 47 U.S.C. § 227(a)(1). Gadelhak asserts that the phrase “using a

11

random or sequential number generator” modifies only the verb “produce,” and has
no effect on the verb “store.” Pl.’s Br. at 7. Gadelhak cites to the Ninth Circuit opinion
in Marks v. Crunch San Diego, LLC to support this argument. Id. (citing 904 F.3d
1041, 1051-52 (9th Cir. 2018)). In Marks, the Ninth Circuit defined ATDS as
“equipment which has the capacity—(1) to store numbers to be called or (2) to produce
numbers to be called, using a random or sequential number generator—and to dial
such numbers.” 904 F.3d at 1053. The court came to this conclusion after examining
§ 227(a)(1), other provisions of the TCPA, and the legislative history of the statute.
Id. at 1050-53. This Court respectfully disagrees with the Ninth Circuit’s holding in
Marks and Gadelhak’s argument here.
At the outset, Gadelhak’s reading of § 227(a)(1) is difficult to square with the
plain language of that provision. Both “store” and “produce” are transitive verbs,
meaning both require an object. Pinkus, 319 F. Supp. 3d at 937-38. Here, that object
is “telephone numbers to be called.” § 227(a)(1). And the phrase “using a random or
sequential number generator” modifies neither “store” nor “produce,” but instead
actually modifies “telephone numbers to be called.” Id. This is evidenced by the
phrase’s position immediately after “telephone numbers to be called.” Id. Put another
way, the most sensible reading of the provision is that the phrase “using a random or
sequential number generator” describes a required characteristic of the numbers to
be dialed by an ATDS—that is, what generates the numbers.
To resist this interpretation, Gadelhak points to other provisions in the TCPA.
As he discusses in his brief, there are two exceptions to the prohibition against

12

automated calls that, it is true, do lead one to question whether calls dialed from a
predetermined list are covered. Pl.’s Br. at 8-10. First, there is an exception for calls
made with the prior consent of the called party. 47 U.S.C. § 227(b)(1)(A). Gadelhak,
citing Marks, argues that there is no way to take advantage of this exception without
dialing from a list of telephone numbers belonging to consenting individuals. Pl.’s Br.
at 9 (citing Marks, 904 F.3d at 1051). Put another way, the exemption seems to imply
that calling from a predetermined list of numbers qualifies a device as an ATDS, but
that when the list is of those individuals who have given their consent, it is exempted
from the prohibition. What Gadelhak overlooks though, is that the consent exception
is drafted in such a way that it also applies to calls made using an artificial or
prerecorded voice—not just those made using an ATDS. 47 U.S.C. § 227(b)(1)(A). So
the consent exception still does have an effect—it does not suffer the embarrassment
of being nugatory—even if ATDS does not cover systems that dial from preset lists.
The consent exception does not undermine the non-preset-list interpretation of
ATDS.
The second exception on which Gadelhak relies is for calls “made solely to
collect a debt owed to or guaranteed by the United States.” 47 U.S.C.
§ 227(b)(1)(A)(iii). But the same reasoning applies to undermine the persuasiveness
of the inference to be drawn from this exception: it also applies to calls made with an
artificial or prerecorded voice. 47 U.S.C. § 227(b)(1)(A). So, again, the federal-debt

13

exception can co-exist with a definition of ATDS that does not cover calls to a preset
list.4
Similarly, Gadelhak’s argument that Congress ratified the Commission’s
construction of the TCPA when it added the federal-debt exception in 2015, but left
the definition of ATDS unchanged, is insufficient to overcome the plain meaning of
the statutory definition of ATDS. The D.C. Circuit’s review of the 2015 Declaratory
Ruling was already pending at the time of Congress’s amendment. See ACA v. FCC,
Case No. 15-1211 (D.C. Cir.), Dkt. No. 1 (July 10, 2015) (Petition for Review);
Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 301, 129 Stat. 584, 588 (Nov. 2,
2015). As a result, there was no “consistent judicial construction” at the time of the
amendment, precluding any conclusions about Congress’s approval of the
Commission’s interpretation of the statute. See Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 350-51 (2005).
Gadelhak’s final argument is that the Court’s reading of § 227(a)(1) renders
the word “store” superfluous, “because any number that is stored using a random or
sequential number generator must logically also have been produced using a random
or sequential number generator.” Pl.’s Br. at 11. At the outset, even if this were true,
it would not, by itself, justify disregarding the plain meaning of the provision. “The
canon against surplusage is not an absolute rule.” Marx v. General Revenue Corp.,

4It

must also be said that, as time marches on and Congress adds to and amends a
statutory framework in piecemeal provisions, at some point it is not surprising that
provisions are added as fail-safe measures to broadly prevent the statute’s application in a
particular setting. This might be an instance where Congress simply wanted to guarantee
that the TCPA, which set a statutory damages minimum for violations (and per violation),
would never be applied to attempts to collect a debt owed to the federal government.

14

568 U.S. 371, 385 (2013). More important, the Court’s interpretation does not actually
render “store” superfluous. The word’s presence in the provision ensures that systems
that generate numbers randomly or sequentially, but then store the numbers for a
period of time before dialing them later after a person has intervened to initiate the
calls, are still covered by the statutory definition of ATDS. All in all, none of
Gadelhak’s arguments are persuasive; instead, the numbers stored by an ATDS must
have been generated using a random or sequential number generator.
D. Application to AT&T’s TACRFT Program
Gadelhak concedes that the system employed by AT&T for its TACRFT
program “generates a list of telephone numbers to be called via automated computer
processes.” Pl.’s Br. at 12. Based on this description, AT&T’s system is not an ATDS
as defined in the statute. Gadelhak makes the additional argument, though, that
“AT&T’s dialing system also uses a random number generator to produce telephone
numbers to be called.” Id. at 13. In support of this assertion, Gadelhak cites to
deposition testimony from AT&T’s Director-Market Research & Analysis, Kerry
Lyon. Id.; Lyon Dep. at 141:22-143:19; Lyon Dec. ¶ 1. Lyon stated that, when AT&T’s
system was confronted with an account that had more than one cellular phone
number listed, he was not sure how the system chose which cellular number to call:
“[I]t could be randomized, I’d have to look at the code.” Lyon Dep. at 143:16-17.
Gadelhak latched onto this comment as proof that AT&T’s system was generating
telephone numbers randomly. Lyon, however, later submitted a declaration in which

15

he clarified that the AT&T system “selects the first eligible wireless number to send
the survey system.” Lyon Dec. II ¶ 5.
Even so, Gadelhak continued to argue that Lyon’s testimony was proof that
AT&T’s system at least had the capacity to generate numbers randomly, because it
was able to “randomly” select numbers to dial from the compiled list of accounts. Pl.’s
Br. at 13 (“Plaintiff pointed to the deposition testimony of Kerry Lyon, who testified
that when the initial list of telephone numbers contains multiple telephone numbers
for the same account, the computer randomly selects one of those numbers to receive
the text message and thus randomly generates that number for dialing.”). But the
D.C. Circuit already explained that numbers must necessarily “be called in some
order—either in a random or some other sequence.” ACA International, 885 F.3d at
702 (emphasis in original). Accordingly, the phrase “using a random or sequential
number generator” would be meaningless if it simply referred to the order in which
calls were made. Moreover, the organization of the provision does not support a
reading where “using a random or sequential number generator” refers to the order
numbers from a list are dialed. Otherwise, the provision would read “to store or
produce telephone numbers to be called; and to dial such numbers, using a random
or sequential number generator.” Based on the record evidence, there is no genuine
dispute that AT&T’s system cannot generate telephone numbers randomly or
sequentially—as those terms are used in the TCPA—and thus it is not an ATDS and
is not prohibited.

16

IV. Conclusion
For the reasons discussed, Gadelhak’s motion for partial summary judgment
is denied and AT&T’s motion for summary judgment is granted. Final judgment shall
be entered. The status hearing of April 4, 2019 is vacated.
ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: March 29, 2019

17