A District Court judge in North Carolina has denied a defendant’s motion to dismiss after it was accused of violating the Telephone Consumer Protection Act by using an automated telephone dialing system to contact an individual without first receiving his consent, adopting a definition of an ATDS that is in line with how the Ninth and Second Circuit Courts have defined it.
A copy of the ruling in the case of Hayhurst v. Keller Williams Realty, Inc., can be accessed by clicking here.
The plaintiff is accusing the defendant of making solicitation calls to his cell phone after his house listing expired. The plaintiff never consented to receiving calls on his cell phone from the defendant and accused it of using an ATDS to contact him in an attempt to get the plaintiff to use the defendant to sell his house.
The defendant sought to have the case dismissed, arguing the plaintiff failed to state a claim for which relief could be granted.
But Judge Carlton Tilley, Jr., of the District Court for the Middle District of North Carolina, ruled that he sides with the Ninth and Second Circuits and not the Seventh and Eleventh Circuits define an ATDS under the TCPA. 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 Ninth and Second Circuits have ruled that technology meets the definition of an ATDS if it stores telephone numbers and calls them, even if they were not generated by a random or sequential number generator. The Seventh and Eleventh Circuits have ruled that an ATDS is one that stores telephone numbers using a random or sequential number generator or produces telephone numbers using a random or sequential number generator. The Supreme Court has agreed to hear arguments in a case during its next term that will hopefully settle the ATDS definition once and for all.
Saying how the Ninth and Second Circuits have defined an ATDS is “more persuasive,” Judge Tilley denied the defendant’s motion to dismiss.
“In that light, there is no doubt that Hayhurst has sufficiently pled that he received telephone calls from an ATDS,” Judge Tilley wrote. “When he answered the second telephone call, there was no one on the line and only after he heard a beep did Karmel join the call. She had left a pre-recorded message when Hayhurst failed to answer her first call. When Hayhurst answered the third telephone call, there were several seconds of “dead air” before the operator came on.”
