The Telephone Consumer Protection Act (the TCPA) (47 USC § 227 et seq.); Whether an “Avaya autodialer system” used to make student loan collection-related calls qualified as an “automatic telephone dialing system” (ATDS); In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd 14014, 14091, ¶ 131; §§ 227(a) & (b)(1); Marks v. Crunch San Diego, LLC (9th Cir.); Duran v. La Boom Disco, Inc. (2d Cir.); Gadelhak v. AT&T Servs., Inc. (7th Cir.); Glasser v. Hilton Grand Vacations Co. (11th Cir.); ACA Int’l v. Federal Commc’ns Comm’n (DC Cir.); Barr v. American Ass’n of Political Consultants, Inc.; Noble Systems Corp., Comments on FCC’s Request for Comments on the Interpretation of the TCPA; Pennsylvania Higher Education Assistance Agency (PHEAA)

[This appeal was from the WD-MI.] In an issue of first impression in this circuit, the court held that defendant-PHEAA’s Avaya autodialer system used to make collection-related calls qualified as a prohibited ATDS under the TCPA because the autodialer ban applies to stored-number systems. The TCPA bans autodialer calls and it fines entities using an ATDS to make calls or texts that were not consented to. The issue here was whether PHEAA’s Avaya autodialer system used to make student loan collection-related calls qualified as an ATDS. The Avaya system “creates a calling list based on a stored list of numbers—the numbers are ‘not randomly generated.’ . . . A live person then ‘create[s] the calling campaigns for the day.’” The Avaya places the calls and connects the recipients to operators if a voice is detected. This type of device is known as a “predictive dialer.” 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.” Whether stored-number systems like the Avaya fall within the definition of an ATDS has split the circuits. Agreeing with the Ninth Circuit, the court found that the autodialer definition was “ambiguous” and that it was necessary to consider the autodialer ban as a whole, including its related provisions. It joined the Ninth and Second Circuits and held that “the structure and context of the autodialer ban support an interpretation of ATDS that would cover stored-number systems like the Avaya system in this case.” It concluded that the “TCPA’s exception for calls made to known, consenting recipients implies that the autodialer ban applies to stored-number systems.” The court affirmed the district court’s grant of summary judgment to plaintiffs.