UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HENRY ESPEJO, individually and on )

behalf of all others similarly situated, )

)

Plaintiff, )

) No. 11 C 8987

v. )

) Judge Charles P. Kocoras

SANTANDER CONSUMER USA, )

INC., an Illinois corporation, )

)

Defendant. )

)

FAYE LEVINS, individually and on )

behalf of all others similarly situated, )

)

Plaintiff, )

) No. 12 C 9431

v. )

) Judge Charles P. Kocoras

SANTANDER CONSUMER USA, )

INC., an Illinois corporation, )

)

Defendant. )

 

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Now before the Court is Defendant Santander Consumer USA, Inc.’s

(“Santander”) renewed motion for summary judgment pursuant to Federal Rule of Civil 

Procedure 56.1 and motion for reconsideration. For the following reasons, the Court 

denies the Defendants’ motions.

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 1 of 20 PageID #:3573
2

BACKGROUND

The underlying facts in this case are detailed in our prior opinion,1and the Court 

provides only a brief restatement based on undisputed facts from the record.

Plaintiffs Henry Espejo (“Espejo”) and Faye Levins (“Levins”) (collectively, 

“Plaintiffs”) each brought class action suits against Defendant Santander for violations 

of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., actions 

which have since been consolidated. These claims arose when Santander utilized its

Aspect Telephone System (“Aspect”) to make calls to the Plaintiffs regarding 

outstanding auto loans. Santander utilizes Aspect in combination with a customer 

account management system called “My Supervisor.” The company uses “My 

Supervisor” to generate a customer list and then uploads the list into Aspect.

Aspect has a dialer feature that dials phone numbers from a customer list using

an algorithm to efficiently match available customer service agents to answered calls. 

The dialer only makes calls once a customer service agent logs-in and presses a button 

to indicate that they are available.

On April 21, 2016, Santander filed a motion for summary judgment, partially on 

the grounds that Aspect’s dialer feature did not constitute an automatic telephone 

dialing system (“ATDS”), which is an essential element of the Plaintiffs’ TCPA claim. 

Thatsame day, Santander moved the Court to stay the proceedings until the D.C. Circuit 

issued its ruling in ACA International v. Federal Communications Commission, 885 

 

1 1:11-cv-8987, Dkt. 215.

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 2 of 20 PageID #:3574
3

F.3d 687 (D.C. Cir. 2018), a consolidated action that considered the validity of the 

Federal Communications Commission (“FCC”) rulemaking regarding the TCPA. On 

October 14, 2016, the Court denied Santander’s motions, but stated that it would “revisit 

any issues affected by [the ACA International] decision as needed, at any time before 

the trial in this case.”

On March 16, 2018, the D.C. Circuit issued its ruling in ACA International. 

Based on the decision, Santander renewed its motion for summary judgment on and 

moved the Court to reconsider its initial denial.

LEGAL STANDARD

In considering a motion for summary judgment, the Court construes all facts and 

draws all reasonable inferences in favor of the non-movant. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate “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 

arises where a reasonable jury could find, based on the evidence of record, in favor of 

the non-movant. Anderson, 477 U.S. at 248. In ruling on a motion for summary 

judgment, the Court considers the “record as a whole.” Morgan v. Harris Trust & Sav. 

Bank of Chi., 867 F.2d 1023, 1026 (7th Cir. 1989).

When a court denies a motion for summary judgment, “the denial...has no res 

judicata effect, and the district court may, in its discretion, allow a party to renew a 

previously denied summary judgment motion....” Whitford v. Boglino, 63 F.3d 527, 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 3 of 20 PageID #:3575
4

531 (7th Cir. 1995). “A renewed or successive summary judgment motion is 

appropriate especially if one of the following grounds exists: (1) an intervening change 

in controlling law; (2) the availability of new evidence or an expanded factual record; 

and (3) need to correct a clear error or prevent manifest injustice.” Id. (internal 

quotation marks omitted).

A motion for reconsideration is appropriate where “the Court has patently 

misunderstood a party, or ... [there has been] a controlling or significant change in the 

law or facts since the submission of the issue to the Court.” Bank of Waunakee v. 

Rochester Cheese Sales, Inc., 906 F.3d 1185, 1191 (7th Cir. 1990).

DISCUSSION

To contextualize the contested issues in this case, the Court must walk through 

the relevant statutory, administrative, and judicial history of the TCPA. As pertinent

here, the TCPA prohibits using an ATDS to call a telephone number assigned to a 

cellular telephone service. 47 U.S.C. § 227(b)(1)(A)(iii). 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.” 

47 U.S.C. § 227(a)(1). Given the FCC’s “authority to promulgate regulations 

implementing the TCPA,” the FCC issued an order in 1992 that “adopted, without 

elaboration, the statutory definition of [an] ATDS.” Pinkus v. Sirius XM Radio, Inc., 

319 F.Supp.3d 927, 929 (N.D. Ill. 2018).

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 4 of 20 PageID #:3576
5

In 2003, the FCC expressed concern that “[t]he marketplace for telemarketing 

has changed significantly in the last decade.” In Re Rules & Regulations Implementing 

the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14021 (2003). 

Specifically, the FCC noted the advent of the predictive dialer, which is “an automated 

dialing system that uses a complex set of algorithms to automatically dial consumers’ 

telephone numbers in a manner that ‘predicts’ the time when a consumer will answer 

the phone and a telemarketer will be available to take the call.” Id. at 14022 n.31.

Since the widespread adoption of predictive dialer technology, it has been 

disputed whether such systems fit within the definition of an ATDS. The FCC 

summarized the debate, saying:

Most industry members that commented on the issue of autodialed calls 

argue that predictive dialers do not fall within the statutory definition of 

“automatic telephone dialing system,” primarily because, they contend, 

predictive dialers do not dial numbers “randomly or sequentially.” Rather, 

they state that predictive dialers store pre-programmed numbers or receive 

numbers from a computer database and then dial those numbers in a 

manner that maximizes efficiencies for call centers. Most consumers and 

consumer groups maintain that predictive dialers are autodialers; that to 

distinguish technologies on the basis of whether they dial randomly or use 

a database of numbers would create a distinction without a difference. 

They argue that for the recipient of the call, there is no difference whether 

the number is dialed at random or from a database of numbers.

Id. at 14090–91. Essentially, the disagreement turns on whether an ATDS needs to dial 

numbers produced “randomly or sequentially” or whether those numbers can be 

automatically dialed from a pre-existing list.

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 5 of 20 PageID #:3577
6

To clarify which of the competing views was correct, the FCC promulgated 

additional rules regarding the definition of an ATDS in 2003 (“2003 Order”). The FCC 

determined that a predictive dialer did fall within the definitional scope of an ATDS, 

stating:

We believe the purpose of the requirement that equipment have the 

“capacity to store or produce telephone numbers to be called” is to ensure 

that the prohibition on autodialed calls not be circumvented. Therefore, 

the Commission finds that a predictive dialer falls within the meaning and 

statutory definition of “automatic telephone dialing equipment” and the 

intent of Congress.

Id. at 14092–93. In adopting the consumer groups’ position, the FCC established that 

a dialing system is still considered an ATDS even if it dials phone numbers from a preexisting list. The FCC affirmed this position in its 2008 rules and regulations (“2008 

Order”). In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. 

Act of 1991, 23 F.C.C. Rcd. 559, 566 (2008).

Less than a decade later, the FCC issued additional rules and regulations “to 

reiterate and simplify the relevant portions of the TCPA” (“2015 Order”). In the Matter 

of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. 

Rcd. 7961, 7971 (2015). First, the FCC sought to clarify the meaning of the term 

“capacity” in the ATDS definition. It stated, “the TCPA’s use of ‘capacity’ does not 

exempt equipment that lacks the ‘present ability’ to dial randomly and sequentially.” 

Id. at 7974. Rather, “the capacity of an autodialer is not limited to its current 

configuration but also includes its potential functionalities.” Id. In other words, a 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 6 of 20 PageID #:3578
7

device that could be modified into an autodialer falls within the TCPA’s prohibitions.

Second, the FCC reiterated that a predictive dialer is considered an ATDS. Id. at 7972. 

It noted that one function of an ATDS is the ability to dial numbers without human 

intervention. Id. at 7975. However, the FCC declined the opportunity to clarify that if 

a device lacked the ability to dial numbers without human intervention, it would not be 

deemed an ATDS. Id. at 7976. The FCC also stated that a second function of an ATDS 

is the ability to “dial random or sequential numbers” or numbers from a customer list. 

Id. at 7971–72.

Instead of providing the desired clarity regarding the ATDS definition, the FCC’s 

2015 Order sparked confusion amongst those seeking to use predictive dialers. As a 

result, “a large number of regulated entities challenged the FCC’s definition of an 

ATDS in the D.C. and Seventh Circuits, and the petitions were consolidated in the D.C. 

Circuit” in the case ACA International. Marks v. Crunch San Diego, LLC, 904 F.3d 

1041, 1046 (9th Cir. 2018). First, the D.C. Circuit rejected the FCC’s “expansive 

interpretation of ‘capacity’” because it could be construed to encompass smartphones. 

ACA Int’l, 885 F.3d at 696. The Court emphasized that “[i]t is untenable to construe 

the term ‘capacity’...in a manner that brings within the definition’s fold the most 

ubiquitous type of phone equipment known, used countless times each day for routine 

communications by the vast majority of people in the country.” Id. at 698. 

Accordingly, the D.C. Circuit held that the FCC’s interpretation “cannot be sustained, 

at least given the Commission’s unchallenged assumption that a call made with a device 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 7 of 20 PageID #:3579
8

having the capacity to function as an autodialer can violate the statute even if the 

autodialer features are not used to make the call.” Id. at 695.

Second, the D.C. Circuit overturned the FCC’s interpretation of a predictive 

dialer as an ATDS because the espoused functional requirements were inconsistent. Id.

at 702–03. The Court expressed its puzzlement over the FCC’s contradictory guidance, 

stating:

So which is it: does a device qualify as an ATDS only if it can generate 

random or sequential numbers to be dialed, or can it so qualify even if it 

lacks that capacity? The 2015 ruling, while speaking to the question in 

several ways, gives no clear answer (and in fact seems to give both 

answers). It might be 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. The Court articulated a similar dismay over the FCC’s human intervention

standards. The Court noted, “[a]ccording to the Commission, then, the ‘basic function’ 

of an autodialer is to dial numbers without human intervention, but a device might still 

qualify as an autodialer even if it cannot dial numbers without human intervention. 

Those side-by-side propositions are difficult to square.” Id. at 703. Due to these 

inconsistencies, the D.C. Circuit held that the FCC’s guidance on the meaning of an 

ATDS failed “the requirement of reasoned decisionmaking.” Id. at 700 (internal 

quotation marks omitted).

* * *

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 8 of 20 PageID #:3580
9

In the wake of ACA International, Santander renewed its motion for summary 

judgment, arguing that the legal principles the Court relied on in its initial denial “have 

been entirely upended.” While the parties have no material factual disputes, they 

diverge on the legal implications of the ACA International decision. Specifically, the 

parties take conflicting stances regarding: (1) whether ACA International confined its 

decision to the FCC’s 2015 Order, or whether the decision also overruled the FCC’s 

2003 and 2008 Orders; and (2) If ACA International did overrule the prior FCC Orders, 

whether the Court should interpret the definition of an ATDS to include predictive 

dialers. The Court addresses each argument in turn.

I. Impact of ACA International on the FCC’s 2003, 2008, and 2015 Orders

In ACA International, the D.C. Circuit invalidated portions of the FCC’s 2015 

Order that concerned the definition of an ATDS. Id. at 700. However, both the parties 

and courts across the country are split as to whether ACA International also invalidated

the FCC’s 2003 and 2008 Orders.

The Plaintiffs maintain that ACA International is confined to the FCC’s 2015 

Order due to the jurisdictional limitations imposed by the Hobbs Act, 28 U.S.C. 

§ 2342(1). This statute grants the court of appeals exclusive jurisdiction to determine 

the validity of all final orders by the FCC. Id. However, the court can only review FCC 

orders challenged within sixty days of its entry. 28 U.S.C. § 2344. Therefore, the 

Plaintiffs and slightly less than half of the district courts to consider this question 

believe that ACA International only impacted the expanded ATDS interpretations found 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 9 of 20 PageID #:3581
10

in the FCC’s 2015 Order, leaving the 2003 and 2008 Orders intact because they were 

outside the period of reviewability.2 With the FCC’s 2003 and 2008 Orders 

undisturbed, the Plaintiffs contend, “it remains the law that all predictive dialers qualify 

as ATDSs.” Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927, 931–32 (N.D. Ill. 

2018).

Santander, on the other hand, argues that the D.C. Circuit considered this 

argument and squarely rejected it. In ACA International, the Court wrote:

[T]he Commission maintains that the court lacks jurisdiction to entertain 

petitioners' challenge concerning the functions a device must be able to 

perform. The agency reasons that the issue was resolved in prior agency 

orders—specifically, declaratory rulings in 2003 and 2008 concluding that 

the statutory definition of an ATDS includes “predictive dialers,” dialing 

equipment that can make use of algorithms to “assist[ ] telemarketers in 

predicting when a sales agent will be available to take calls.” According 

to the Commission, because there was no timely appeal from those 

previous orders, it is too late now to raise a challenge by seeking review 

of a more recent declaratory ruling that essentially ratifies the previous 

ones. We disagree. While the Commission's latest ruling purports to 

reaffirm the prior orders, that does not shield the agency's pertinent 

 

2 Duran v. La Boom Disco, Inc., 369 F. Supp. 3d 476, 488 (E.D.N.Y. 2019) (finding that ACA 

International’s invalidation of the FCC’s 2015 Order did not invalidate the analogous portions of the FCC’s 

2003 and 2008 Orders); Reyes v. BCA Fin. Servs., Inc., 312 F. Supp. 3d 1308, 1320 (S.D. Fla. 2018) (same); 

Ramos v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262, 1272 (S.D. Fla. 2018) (same); Maes v. 

Charter Commc'n, 345 F. Supp. 3d 1064, 1065 (W.D. Wis. 2018) (same); Ammons v. Ally Fin., Inc., 326 

F. Supp. 3d 578, 587 (M.D. Tenn. 2018) (same); Jiminez v. Credit One Bank, N.A., No. 17 CV 2844, 2019 

WL 1409425, at *5 (S.D.N.Y. Mar. 28, 2019) (same); Wilson v. Quest Diagnostics Inc., No. CV 2:18-

11960, 2018 WL 6600096, at *3 (D.N.J. Dec. 17, 2018) (same); Abante Rooter & Plumbing, Inc. v. 

Alarm.com Inc., No. 15-CV-06314, 2018 WL 3707283, at *6 (N.D. Cal. Aug. 3, 2018) (same); Somogyi v. 

Freedom Mortg. Corp., No. CV 17-6546, 2018 WL 3656158, at *4 (D.N.J. Aug. 2, 2018) (same); Sieleman 

v. Freedom Mortg. Corp., No. CV 17-13110, 2018 WL 3656159, at *3 (D.N.J. Aug. 2, 2018) (same); 

Pieterson v. Wells Fargo Bank, N.A., No. 17-CV-02306, 2018 WL 3241069, at *3 (N.D. Cal. July 2, 2018)

(same); O'Shea v. Am. Solar Sol., Inc., No. 3:14-CV-00894, 2018 WL 3217735, at *2 (S.D. Cal. July 2, 

2018) (same); McMillion v. Rash Curtis & Assocs., No. 16-CV-03396, 2018 WL 3023449, at *3 (N.D. Cal. 

June 18, 2018) (same); Castrellon v. Fitness Club Mgmt.., LLC, No. CV 17-08825, 2018 WL 5099741, at 

*5 (C.D. Cal. June 6, 2018) (same); Maddox v. CBE Grp., Inc., No. 1:17-CV-1909, 2018 WL 2327037, at 

*4 (N.D. Ga. May 22, 2018) (same); Swaney v. Regions Bank, No. 2:13-CV-00544, 2018 WL 2316452, at 

*1 (N.D. Ala. May 22, 2018) (same).

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 10 of 20 PageID #:3582
11

pronouncements from review.

ACA Int’l, 885 F.3d at 701 (internal citations omitted). Two circuit courts have directly 

addressed this question and aligned with Santander’s position. The Second Circuit held 

that ACA International “invalidated [the FCC’s orders] and thereby removed any 

deference we might owe to the views of the FCC expressed in it.” King v. Time Warner 

Cable Inc., 894 F.3d 473, 477 (2d Cir. 2018). The Ninth Circuit agreed, finding that 

“[t]he D.C. Circuit concluded that the parties’ 2015 rulemaking petition to the FCC 

reopened consideration of the definition of ATDS established in the FCC’s 2003 order, 

as well as its subsequent rulings.” Marks, 904 F.3d at 1047. Moreover, a marginal 

majority of the district courts to opine on this issue have adopted the position that ACA 

International invalidated the interpretation of an ATDS found in the FCC’s 2003, 2008, 

and 2015 Orders.3 The Court agrees with this position.

 

3 Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927, 932 (N.D. Ill. 2018) (“ACA International invalidated 

not only the 2015 Declaratory Ruling's interpretation of the statutory term ATDS, but also the 2008 

Declaratory Ruling's and 2003 Order's interpretation of that term.”); Johnson v. Yahoo!, Inc., 346 F. Supp. 

3d 1159, 1161 (N.D. Ill. 2018) (same); Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d 606, 

621 (N.D. Iowa 2019) (same); Sessions v. Barclays Bank Delaware, 317 F. Supp. 3d 1208, 1212 (N.D. Ga. 

2018) (same); Herrick v. GoDaddy.com LLC, 312 F. Supp. 3d 792, 799 (D. Ariz. 2018) (same); Gary v. 

TrueBlue, Inc., 346 F. Supp. 3d 1040, 1043 (E.D. Mich. 2018) (same); Keyes v. Ocwen Loan Servicing, 

LLC, 335 F. Supp. 3d 951, 960 (E.D. Mich. 2018) (same); Fleming v. Associated Credit Servs., Inc., 342 

F. Supp. 3d 563, 574 (D.N.J. 2018) (same); Richardson v. Verde Energy USA, Inc., 354 F. Supp. 3d 639, 

648 (E.D. Pa. 2018) (same); Adams v. Ocwen Loan Servicing, LLC, 366 F. Supp. 3d 1350, 1354 (S.D. Fla. 

2018) (same); Yates v. Checkers Drive-In Restaurants, Inc., No. 17-CV-9219, 2019 WL 1437906, at *2 

(N.D. Ill. Apr. 1, 2019) (same); Gadelhak v. AT&T Servs., Inc., No. 17-CV-01559, 2019 WL 1429346, at 

*4 (N.D. Ill. Mar. 29, 2019) (same); Folkerts v. Seterus, Inc., No. 17 C 4171, 2019 WL 1227790, at *6 

(N.D. Ill. Mar. 15, 2019) (same); Melvin v. Ocwen Loan Servicing LLC, No. 8:18-CV-1911-T-36SPF, 2019 

WL 1980605, at *3 (M.D. Fla. May 3, 2019) (same); Larson v. Harman Mgmt. Corp., No. 16-CV-00219, 

2018 WL 6459964, at *2 (E.D. Cal. Dec. 10, 2018) (same); Roark v. Credit One Bank, N.A., No. CV 16-

173, 2018 WL 5921652, at *3 (D. Minn. Nov. 13, 2018) (same); Evans v. Pennsylvania Higher Educ. 

Assistance Agency, No. 3:16-CV-82, 2018 WL 6362637, at *2 (N.D. Ga. Oct. 11, 2018) (same); Gonzalez 

v. Ocwen Loan Servicing, LLC, No. 5:18-CV-340, 2018 WL 4217065, at *6 (M.D. Fla. Sept. 5, 2018)

(same); Washington v. Six Continents Hotels, Inc., No. 216CV03719, 2018 WL 4092024, at *3 (C.D. Cal. 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 11 of 20 PageID #:3583
12

Given this stance, the Court is not bound by the FCC’s views on the definition 

of an ATDS. As such, “only the statutory definition of ATDS as set forth by Congress 

in 1991 remains.” Marks, 904 F.3d at 1050.

II. The ATDS Definition and Predictive Dialers

Absent FCC guidance, the Court must look to the statutory definition of an 

ATDS to consider the remaining issues in this case. Relying on this definition, the 

parties disagree as to the functionality required for a type of equipment to constitute an 

ATDS. Specifically, the parties take differing views regarding the generation of 

telephone numbers and the acceptable amount of human intervention.

A. Telephone Number Generation Requirement

i. Plain Meaning

First, the parties dispute whether a type of equipment can be considered an ATDS 

if it does not have the ability to generate random or sequential telephone numbers, but 

rather automatically dials numbers from a pre-existing list. To determine the proper 

interpretation of an ATDS, the Court first looks to the language of the statute. United 

States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition, 376 

F.3d 709, 712 (7th Cir. 2004). If the language is unambiguous, the Court applies the 

plain meaning of the statute. Id. However, if the language is ambiguous, the Court may 

look to other tools of statutory interpretation. Id.

 

Aug. 24, 2018) (same); Gary v. TrueBlue, Inc., No. 17-CV-10544, 2018 WL 3647046, at *6 (E.D. Mich. 

Aug. 1, 2018) (same).

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 12 of 20 PageID #:3584
13

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.” 47 U.S.C. § 227(a)(1). There are two 

prevailing interpretations of this language.

The Plaintiffs side with the school of thought adopted by the Ninth Circuit,

4

which asserts that the ATDS definition covers predictive dialers because it anticipates 

the use of pre-existing customer lists. This position asserts that the statutory phrase 

“using a random or sequential number generator” modifies the term “produce” not the 

term “store.” Marks, 904 F.3d at 1050. The underlying rationale is that “a number 

generator is not a storage device; a device could not use ‘a random or sequential number 

generator’ to store telephone numbers.” Id. Therefore, it does not make sense to apply 

the adverbial “using” phrase to the term “store.” Further, because the statute uses the 

disjunctive “or,” the equipment does not need to “produce” telephone numbers to be 

called if it can “store” telephone numbers to be called. Accordingly, “the statutory 

definition of ATDS is not limited to devices with the capacity to call numbers produced 

by a ‘random or sequential number generator,’ but also includes devices with the 

capacity to dial stored numbers automatically.” Id. at 1052. Therefore, the Ninth 

Circuit determined that “the term automatic telephone dialing system means 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.” 

 

4 Marks, 904 F.3d at 1052.

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 13 of 20 PageID #:3585
14

Id.

Santander subscribes to the competing school of thought, adopted by the Third 

Circuit,5 which asserts that the ATDS definition necessarily excludes predictive dialers 

because they do not have the capacity to generate numbers randomly or sequentially. 

This position notes that “store” and “produce” are both transitive verbs that require an 

object, which in this case is the phrase “telephone numbers to be called.” Pinkus, 319 

F. Supp. 3d at 937. “Despite the disjunctive ‘or’ linking ‘store’ and ‘produce,’ ‘store’ 

is not a grammatical orphan, rather, like ‘produce,’ it is tied to the object, ‘telephone 

numbers to be called.’” Id. at 937–38. Moreover, this interpretation emphasizes that 

the adverbial “using” phrase follows both verbs, so it cannot grammatically modify only 

“produce.” Id. at 937. Rather, “[g]iven its placement immediately after ‘telephone 

numbers to be called,’ the phrase ‘using a random or sequential number generator’ is 

best read to modify ‘telephone numbers to be called,’ describing the quality of the 

numbers an ATDS must have the capacity to store or produce.” Id. at 938. Therefore, 

“the phrase ‘using a random or sequential number generator’ necessarily conveys that 

an ATDS must have the capacity to generate telephone numbers, either randomly or 

sequentially, and then to dial those numbers.” Id.

 

5 See Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018) (“Ultimately, 

[Appellant] cannot point to any evidence that creates a genuine dispute of fact as to whether the Email 

SMS Service had the present capacity to function as an autodialer by generating random or sequential 

telephone numbers and dialing those numbers.”).

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 14 of 20 PageID #:3586
15

Based solely on the statutory text, either of these interpretations are reasonable. 

Therefore, the Court joins the Ninth and D.C. Circuits in finding the ATDS definition 

to be facially ambiguous. Marks, 904 F.3d at 1051 (“After struggling with the statutory 

language ourselves, we conclude that it is not susceptible to a straightforward 

interpretation based on the plain language alone. Rather, the statutory text is ambiguous 

on its face.”); ACA Int’l, 885 F.3d at 702–03 (“So which is it: does a device qualify as 

an ATDS only if it can generate random or sequential numbers to be dialed, or can it so 

qualify even if it lacks that capacity? ...It might be permissible for the Commission to 

adopt either interpretation.”).

ii. Statutory Structure and Context

As the Seventh Circuit instructs, “because we see ambiguity, we look at the entire 

text and structure of the statute to determine its meaning. Interpretations inconsistent 

with that structure and context should be rejected.” Miscellaneous Firearms, 376 F.3d 

at 712. Based on this analysis the Ninth Circuit noted, “[t]he structure and context of 

the TCPA as originally enacted indicate that Congress intended to regulate devices that 

make automatic calls.” Marks, 904 F.3d at 1051.

The Court based its conclusion on the provisions of the TCPA that allow an 

ATDS to call designated categories of numbers. Id. For example, the TCPA permits 

the use of an ATDS to “make any call... with the prior express consent of the called 

party.” 47 U.S.C. § 227(b)(1)(A)(iii). “To take advantage of this permitted use, an 

autodialer would have to dial from a list of phone numbers of persons who had 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 15 of 20 PageID #:3587
16

consented to such calls, rather than merely dialing a block of random or sequential 

numbers.” Marks, 904 F.3d at 1051. Similarly, the TCPA exempts the use of an ATDS

to make calls “solely to collect a debt owed to or guaranteed by the United States.” 47 

U.S.C. § 227(b)(1)(A)(iii). As the Ninth Circuit reasoned:

Like the exception allowing the use of an autodialer to make calls “with 

the prior express consent of the called party,” the debt collection exception 

demonstrates that equipment that dials from a list of individuals who owe 

a debt to the United States is still an ATDS but is exempted from the 

TCPA’s strictures.

Marks, 904 F.3d at 1052. These exemptions illustrate that Congress intentionally 

defined an ATDS to have the capability to make calls from a pre-existing list, rather 

than exclusively calling numbers generated randomly or sequentially.

To further demonstrate this point, the TPCA includes a treble damages clause in 

the event that a defendant committed a willful and knowing violation of the statute. 47 

U.S.C. § 227(b)(3). It is difficult to square how a defendant could commit a willful and 

knowing violation of the TCPA if the employed ATDS is dialing numbers randomly or 

sequentially. Instead, it logically follows that a willful or knowing violation would 

involve placing calls to pre-determined phone numbers which the defendant knew were 

restricted under the TCPA. These structural and contextual features of the TCPA lead 

the Court to believe that the “language in the statute indicates that equipment that made 

automatic calls from lists of recipients was also covered by the TCPA.” Marks, 904 

F.3d at 1051.

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 16 of 20 PageID #:3588
17

iii. Legislative Intent

Next, the Court turns to the legislative history to decipher which definitional 

interpretation of an ATDS Congress intended. The enactment of the TCPA was 

motivated by the exponential increase in automated telemarketing calls. H.R. Rep. 102-

317, at 2 (1991). As Senator Fritz Hollings protested, “[c]omputerized calls are the 

scourge of modern civilization. They wake us up in the morning; they interrupt our 

dinner at night; the force the sick and elderly out of bed; they hound us until we want 

to rip the telephone right out of the wall.” 137 Cong. Rec. S16,205 (daily ed. Nov. 7, 

1991) (statement of Sen. Hollings). Senator Hollings was not alone in that feeling, as 

“[m]any consumers [were] outraged [by] the proliferation of intrusive, nuisance calls 

to their homes from telemarketers.” H.R. Rep. 102-317, at 2.

In response to these concerns, Senator Hollings proposed “a bill to amend the 

Communications Act of 1934, in order to ‘protect the privacy interests of residential 

telephone subscribers by placing restrictions on unsolicited, automated telephone calls 

to the home and to facilitate interstate commerce by restricting certain uses of facsimile 

(fax) machines and automatic dialers.’” S. Rep. No. 103-178, at 2 (1991). This bill 

was enacted and is now the statute known as the TPCA.

While the call targets have expanded from residential lines to cellular telephone 

lines, the pervasiveness of automated telemarketing calls has remained constant. 

Likewise, consumers continue to face a barrage of privacy invasions from automated 

telemarketing calls. As the FCC previously noted, “for the recipient of the call, there 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 17 of 20 PageID #:3589
18

is no difference whether the number is dialed at random or from a database of numbers.” 

In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 

F.C.C. Rcd. 14014, 14091 (2003). 

Given Congress’s particular contempt for automated calls and concern for the 

protection of consumer privacy, the legislative history of the TCPA supports the Ninth 

Circuit’s position that the ATDS definition includes autodialed calls from a pre-existing 

list of recipients. To hold otherwise would exempt a “widely used” automated dialing 

technology from the purview of the TCPA, leaving consumers without recourse for the 

precise problems Congress already addressed. Id. at 14090.

Because the Court adopts the interpretation of the ATDS definition that permits 

dialing pre-existing customer lists, Santander’s Aspect system is not exempt from the 

TCPA as a matter of law. Indeed, because Aspect automatically dials numbers from a 

set customer list, it falls within the definition of an ATDS.

B. Human Intervention Requirement

Next, the parties dispute the acceptable amount of human intervention for 

equipment to be deemed an ATDS. Santander suggests that a predictive dialer requiring 

any amount of human intervention cannot constitute an ATDS. The Plaintiffs take an 

opposing view, asserting that minimal human intervention is inevitable and does not 

place a particular equipment beyond the TCPA’s reach. The Plaintiffs further suggest 

that ACA International should not alter the Court’s previous decision regarding human 

intervention because courts continue to assess the acceptable level on a case-by-case 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 18 of 20 PageID #:3590
19

basis. The Court agrees with the Plaintiffs and reaffirms its previous decision with 

respect to human intervention.

To reiterate, “[e]very ATDS requires some initial act of human agency—be it 

turning on the machine or pressing ‘Go.’ It does not follow, however, that every 

subsequent call the machine dials—or message it sends—is a product of that human 

intervention.” Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2014 WL 7005102, at *5 

(N.D. Ill. Dec. 11, 2014); See also Marks, 904 F.3d at 1052–53 (“Common sense 

indicates that human intervention of some sort is required before an autodialer can begin 

making calls, whether turning on the machine or initiating its functions. Congress was 

clearly aware that, at the very least, a human has to flip the switch on an ATDS.”). 

Therefore, as a matter of functional practicality, some degree of human intervention is 

inevitable in any ATDS.

Moreover, the statutory language reveals what Congress anticipated would be 

automatic—the dialing. “By referring to the relevant device as an ‘automatic telephone 

dialing system,’ Congress made clear that it was targeting equipment that could engage 

in automatic dialing, rather than equipment that operated without any human oversight 

or control.” Marks, 904 F.3d at 1052 (citing ACA Int’l, 885 F.3d at 703 (“‘[A]uto’ in 

autodialer—or, equivalently, ‘automatic’ in ‘automatic telephone dialing system’—

would seem to envision non-manual dialing of telephone numbers.”) (internal citations 

omitted)). Because predictive dialers engage in the automatic dialing of telephone 

numbers, the initial functionality of the machine need not be completely free of all 

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 19 of 20 PageID #:3591
20

human intervention.

Santander’s Aspect system requires human intervention to the extent of 

uploading a pre-existing customer list and clicking a button to indicate a customer 

service agent’s availability. From there, Aspect’s dialer responds to the customer 

service agent’s availability and begins dialing numbers from the list based on a 

programmed algorithm. “Thus, according to Santander’s own description, its Aspect 

dialer—not the agents—makes the calls by dialing numbers from the uploaded list.” 

1:11-cv-8987, Dkt. 215. This falls within the acceptable and inevitable amount of 

human intervention for an ATDS.

CONCLUSION

For the aforementioned reasons, the Court denies the Defendant’s motions. It is

so ordered.

Dated: 06/12/2019

________________________

Charles P. Kocoras

United States District Judge

Case: 1:11-cv-08987 Document #: 250 Filed: 06/12/19 Page 20 of 20 PageID #:3592