In Scherrer v. FPT Operating Co., LLC, No. 19-CV-03703-SKC, 2023 WL 4660089, at *2–4 (D. Colo. July 20, 2023), Magistrate Crews denied a motion to dismiss a TCPA case addressing whether the Five9 system was an ATDS.
The Supreme Court then continued in Footnote 7 to reject Duguid’s argument that the patent cited by the Amici Curiae brief (and thus by the Supreme Court), which would “produce” numbers using one number generator and then “store” them using a second number generator, rendered “store” superfluous under 47 U.S.C. § 227(a)(1). Id. at 1172 n.7.3 Critically here, in rejecting that argument, the Supreme Court noted, “For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time.” Id. (citing Amici Curiae, p.19). Plaintiff relies on this statement to support her argument that a random or sequential number generator under the TCPA can generate a number (as opposed to a telephone number) that is used to store and to order a list of telephone numbers to be called later. Dkt. 82, p.9. Defendant disagrees. Dkt. 80, pp.8-9. The Supreme Court’s statements in Footnote 7 are dicta. But this Court affords it considerable weight based on its recency and due to the dearth of controlling precedent on point. . . .The Tenth Circuit has not opined on whether an autodialer4 (as alleged in the Complaint) that stores existing telephone numbers and uses a random or sequential number generator to select the order in which the telephone numbers will be called, is an ATDS under the TCPA. And a split of authority exists in this District. Compare Montanez v. Future Vision Brain Bank, LLC, 536 F. Supp. 3d 828, 837 (D. Colo. 2021) (denying motion to dismiss that argued an autodialer that allegedly used a random or sequential number generator (but not a telephone number generator) did not meet the ATDS definition), with Mina v. Red Robin Int’l, Inc., 20-cv-00612-RM-KLM, 2022 WL 2105897, at *4 (D. Colo. June 10, 2022) (recommending dismissal of complaint because it failed to allege the random or sequential number generator used generated telephone numbers), report & rec. adopted, 2022 WL 17547830 (D. Colo. Aug. 19, 2022). Other courts facing this riddle and examining Footnote 7 have held an ATDS is not limited to a telephone-number generator. See, e.g., MacDonald, 2021 WL 5203107, at *2; but see Timms v. USAA Fed. Sav. Bank, 543 F. Supp. 3d 294, 299-301 (D. S.C. 2021). Based on the weight of authority and the Supreme Court’s dicta in Footnote 7 of Duguid, this Court finds an autodialer that stores a list of telephone numbers using a random or sequential number generator to determine the dialing order is an ATDS under the TCPA. And Plaintiff’s allegations are sufficient at this stage to plausibly plead a claim that Defendant violated the TCPA. See Libby v. Nat’l Rep. Sen. Comm., 551 F. Supp. 3d 724, 729 (W.D. Tex. 2021) (“Under the facts alleged herein, Plaintiff claims that Defendant called and texted him using an automatic telephone dialing system that ‘calls phone numbers from a stored list using a random or sequential number generator to select those phone numbers.’ [citation omitted] He does not allege that Defendant placed targeted, individualized calls or texts to him. The [c]ourt thus finds these factual allegations sufficient to survive dismissal under Rule 12(b)(6).”); see also Carl v. First Nat’l Bank of Omaha, 2:19-cv-00504-GZS, 2021 WL 2444162, at *9 n.10 (D. Me. June 15, 2021) (acknowledging that a system that used a random number generator to store telephone numbers could be an ATDS). Such an autodialer is an ATDS even if the list of telephone numbers was not itself generated using a random or sequential number generator. See Carl, 2021 WL 2444162, at *9 n.10. . . . Further, the Duguid Court noted that “even if the storing and producing functions often merge, Congress may have ‘employed a belt and suspenders approach’ in writing the statute.” Duguid, 141 S. Ct. at 1172 n.7 (emphasis added) (citation omitted). “Often” is not “always,” further suggesting the Supreme Court anticipated instances in which a random or sequential number generator would be used to store telephone numbers and generate the calling order but without generating the numbers themselves. See id. Indeed, to store telephone numbers using a random or sequential number generator loses meaning if the TCPA is read only to apply when the list of telephone numbers is itself generated using another random or sequential number generator. See Duguid, 141 S. Ct. at 1172 n.7. . . . Taking Plaintiff’s allegations in the light most favorable to her, the Complaint alleges a violation of the TCPA because it alleges the following: Defendant “utilizes an automated outbound dialer to contact small to medium sized business owners nationwide regarding [Defendant’s] merchant payment processing solutions.” Dkt. 79, ¶20. “Defendant fail[ed] to obtain any express written consent prior to placing autodialed calls to cellular telephone numbers such as Plaintiff’s.” Id. at ¶22. “Defendant runs an Outbound Contact Center (OCC) that uses Five9’s automated dialing system to automatically call lists of leads.” Id. at ¶27. “The Five9 system can generate sequential numbers and store these sequential numbers in a database, to indicate the dialing order for leads. The system can also generate random numbers and store these random numbers in a database, to indicate a random dialing order for leads.” Id. at ¶28. “The Five9 system can also generate random numbers, to order calls, and store these random numbers in a database, to indicate the ‘shuffled’ dialing order.” Id. at ¶32. “The system can then dial phone numbers in the stored order.” Id. at ¶33. Plaintiff further alleges that Defendant called her cellular telephone multiple times, id. at ¶¶36, 37, and 43, and that Plaintiff believes that the calls were received from an autodialer, id. at ¶¶36, 38, and 44. See Callier v. MultiPlan, Inc., EP-20-CV-00318-FM, 2021 WL 8053527, at *17 (W.D. Tex. Aug 26, 2021) (“To require Plaintiff to plead the specifics of the technology used to place harassing calls would raise the pleading standard for TCPA claims impermissibly high.”). These allegations are sufficient to plausibly state a claim at the pleading stage premised on an alleged violation of 47 U.S.C. § 227(b)(1)(A).6