Hunt v. 21st Mortgage Corp., No. 2:12-cv-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013)

Pending before the court was a Motion to Compel Discovery during which the issue of what constitutes an Automatic Telephone Dialing System (ATDS) was addressed. The court began its analysis noting that 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. Based on this definition, Plaintiff argued that while Defendant’s system could not, in the state utilized, store or produce numbers that could be dialed using a random or sequential number generator to dial the numbers, software could have been added to make that possible. As such, the system had the requisite capacity to constitute an ATDS as defined in the TCPA.

Noting that the text of the statute focuses on the term ”capacity,” the court also recognized that the problem with Plaintiff’s argument was  that, “in today’s world, the possibilities of modification and alteration are virtually limitless. For example, it is virtually certain that software could be written, without much trouble, that would allow iPhones “to store or produce telephone numbers to be called, using a random or sequential number generator, and to call them. Are the roughly 20 million American iPhone users subject to the mandates of § 227(b)(1)(A) of the TCPA? More likely, only iPhone users who were to download this hypothetical “app” would be at risk.” In light of this fact, the court held that, “to meet the TCPA definition of an ‘automatic telephone dialing system,’ a system must have a present capacity, at the time the calls were being made, to store or produce and call numbers from a number generator. While a defendant can be liable under § 227(b)(1)(A) whenever it has such a system, even if it does not make use of the automatic dialing capability, it cannot be held liable if substantial modification or alteration of the system would be required to achieve that capability.”