### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1738

A LI G ADELHAK

, on behalf of himself

and all others similarly situated,

Plaintiff

‐ Appellant

,

v.

AT&T S ERVICES

, I NC

., Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17

‐ cv

‐ 1559

— Edmond E. Chang

, Judge

.

____________________

A RGUED S EPTEMBER 27, 2019

— D ECIDED F EBRUARY 19, 2020

____________________

Before W OOD

, Chief Judge

, and K ANNE and B ARRETT

, Circuit

Judges

.

B ARRETT

, Circuit Judge

. The wording of the provision that

we interpret today is enough to make a grammarian throw

down her pen. The Telephone Consumer Protection Act bars

certain uses of an “automatic telephone dialing system,”

which it defines as equipment with the capacity “to store or

produce telephone numbers to be called, using a random or2 No. 19

‐ 1738

sequential number generator,” as well as the capacity to dial

those numbers. We must decide an issue that has split the cir

‐

cuits: what the phrase “using a random or sequential number

generator” modifies.

We’ll save the intense grammatical parsing for the body of

the opinion—here, we’ll just give the punchline. We hold that

“using a random or sequential number generator” modifies

both “store” and “produce.” The system at issue in this case,

AT&T’s “Customer Rules Feedback Tool,” neither stores nor

produces numbers using a random or sequential number gen

‐

erator; instead, it exclusively dials numbers stored in a cus

‐

tomer database. Thus, it is not an “automatic telephone dial

‐ ing system” as defined by the Act—which means that AT&T

did not violate the Act when it sent unwanted automated text

messages to Ali Gadelhak.

I.

This dispute stems from AT&T’s “Customer Rules Feed

‐

back Tool,” a device that sends surveys to customers who

have interacted with AT&T’s customer service department.

Using this tool, AT&T sent Chicago resident Ali Gadelhak

five text messages asking survey questions in Spanish. But

Gadelhak is neither an AT&T customer nor a Spanish speaker,

and his number is on the national “Do Not Call Registry.” An

‐ noyed by the texts, Gadelhak brought a putative class action

against AT&T for violating the Telephone Consumer Protec

‐

tion Act, which Congress enacted in 1991 to address the prob

‐

lem of intrusive telemarketing.

With some exceptions not relevant here, the Act prohibits

the use of an “automatic telephone dialing system” to call or

text any cellular phone without the prior consent of theNo. 19

‐ 1738 3

recipient, as well as to call certain hospital numbers. 47 U.S.C.

§ 227(b)(1). An “automatic telephone dialing system” is de

‐

fined as:

equipment which has the capacity—

(A) to store or produce telephone numbers to be

called, using a random or sequential num

‐

ber generator; and

(B) to dial such numbers.

Id. § 227(a)(1); see also Campbell

‐ Ewald Co. v. Gomez

, 136 S. Ct.

663, 667 (2016) (clarifying that text messages are covered). The

success of Gadelhak’s suit depends on whether AT&T’s feed

‐

back tool meets this definition. Unfortunately, the awkward

statutory wording, combined with changes in technology,

makes this a very difficult question.

At the time that the Telephone Consumer Protection

Act was passed, telemarketers primarily used systems that

randomly generated numbers and dialed them, and everyone

agrees that such systems meet the statutory definition. But

that’s not how AT&T’s customer feedback tool works. The

system, like others commonly used today, pulls and dials

numbers from an existing database of customers rather than

randomly generating them. (Given that its tool pulls exclu

‐ sively from its customer database, AT&T posits that Gadelhak

received messages because of a typographical error.) Deter

‐ mining whether such systems meet the statutory definition

has forced courts to confront an awkwardness in the statutory

language that apparently didn’t matter much when the stat

‐

ute was enacted: it’s not obvious what the phrase “using a

random or sequential number generator” modifies. The an

‐

swer to that question dictates whether the definition captures4 No. 19

‐ 1738

only the technology that predominated in 1991 or is broad

enough to encompass some of the modern, database

‐ focused

systems.

II.

Before we analyze the merits, though, we must address

the preliminary matter of Gadelhak’s standing to bring this

suit. The doctrine of standing is rooted in Article III of the U.S.

Constitution, which limits the federal judicial power to re

‐ solving “Cases” or “Controversies.” U.S. C ONST

. art. III, § 2.

To satisfy the standing requirement, the plaintiff must claim

“to have suffered an injury that the defendant caused and the

court can remedy.” Casillas v. Madison Ave. Assocs., Inc.

, 926

F.3d 329, 333 (7th Cir. 2019). If a plaintiff lacks standing, a fed

‐

eral court lacks jurisdiction.

While AT&T does not challenge Gadelhak’s standing, we

have an independent obligation to confirm our jurisdiction

before adjudicating a case. FW/PBS, Inc. v. City of Dallas

, 493

U.S. 215, 231 (1990). To be sure, the obligation to verify our

jurisdiction in every case does not mean that we have to dis

‐

cuss it in every opinion. Here, though, the question whether

plaintiffs like Gadelhak have standing is difficult enough to

have divided the circuits. The Eleventh Circuit has held that

the receipt of an unwanted automated text message is not a

cognizable injury under Article III because it is insufficiently

“concrete.” Salcedo v. Hanna

, 936 F.3d 1162, 1172 (11th Cir.

2019). The Second and Ninth Circuits have come out the other

way. Melito v. Experian Mtkg. Sols., Inc.

, 923 F.3d 85, 92–93 (2d

Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC

, 847 F.3d

1037, 1042–43 (9th Cir. 2017). Given the split, it is important

for us to show our work.No. 19

‐ 1738 5

To qualify as “concrete,” an injury must be “real” rather

than “abstract”—that is, “it must actually exist.” Spokeo, Inc.

v. Robins

, 136 S. Ct. 1540, 1548 (2016). A “bare procedural vio

‐

lation” does not qualify, even if it gives rise to a statutory

cause of action. Id. at 1549. That is so because Article III cabins

Congress’s authority to create causes of action, and suits in

‐ volving abstract injuries lie beyond “the judicial Power.” U.S.

C ONST

. art. III, § 1. Thus, Gadelhak’s standing to sue is not set

‐

tled by the fact that the Telephone Consumer Protection Act

authorizes his suit. See 47 U.S.C. § 227(b)(3). It depends on

whether the unwanted texts from AT&T caused him concrete

harm or were merely a technical violation of the statute.

To determine whether the texts caused concrete harm, we

look to both history and Congress’s judgment. As the Court

has explained, “it is instructive to consider whether an alleged

intangible harm has a close relationship to a harm that has

traditionally been regarded as providing a basis for a lawsuit

in English or American courts.” Spokeo

, 136 S. Ct. at 1549. And

because Congress is particularly suited “to identify intangible

harms that meet minimum Article III requirements, its judg

‐

ment is also instructive and important.” Id.

We’ll start with history. The common law has long recog

‐

nized actions at law against defendants who invaded the pri

‐

vate solitude of another by committing the tort of “intrusion

upon seclusion.” R ESTATEMENT (S ECOND ) OF T ORTS § 652B

(A M

. L AW I NST

. 1977). In rejecting standing in a similar case,

the Eleventh Circuit suggested that the tort of intrusion upon

seclusion addressed only invasions of privacy like eavesdrop

‐ ping and spying, which pose a different kind of harm alto

‐ gether. Salcedo

, 936 F.3d at 1171. We see things differently.

Courts have also recognized liability for intrusion upon6 No. 19

‐ 1738

seclusion for irritating intrusions—such as when “telephone

calls are repeated with such persistence and frequency as to

amount to a course of hounding the plaintiff.” R ESTATEMENT

§ 652B cmt. d; see id. cmt. b, illus. 5; see also Carey v. Statewide

Fin. Co.

, 223 A.2d 405, 406–07 (Conn. Cir. Ct. 1966); Housh v.

Peth

, 133 N.E.2d 340, 344 (Ohio 1956); Household Credit Servs.,

Inc. v. Driscol

, 989 S.W.2d 72, 84–85 (Tex. App. 1998). The harm

posed by unwanted text messages is analogous to that type of

intrusive invasion of privacy.

Now, for Congress’s judgment. In passing the Act, Con

‐

gress decided that automated telemarketing can pose this

same type of harm to privacy interests. Pub. L. No. 102

‐ 243,

§ 2, 105 Stat. 2394, 2394 (1991) (explaining in the findings that

“[u]nrestricted telemarketing

... can be an intrusive invasion

of privacy” and characterizing telemarketing as a “nui

‐

sance”). While Congress cannot transform a non

‐ injury into

an injury on its say

‐ so, that is hardly what it did here. Instead,

Congress identified a modern relative of a harm with long

common law roots. And Gadelhak claims to have suffered the

very harm that the Act is designed to prevent. Cf. Melito

, 923

F.3d at 92–93 (reaching the same conclusion). 1

1 The Eleventh Circuit maintains that Congress was concerned with

the harm posed by unwanted telephone calls, not text messages. Compare

Salcedo

, 936 F.3d at 1172 (no standing in a TCPA suit over an unwanted

text message), with Cordoba v. DirectTV, LLC

, 942 F.3d 1259, 1270 (11th Cir.

2019) (finding injury

‐ in

‐ fact in a TCPA suit alleging unwanted calls). We

don’t share the view that the two are “categorically distinct.” Salcedo

, 936

F.3d at 1172. The undesired buzzing of a cell phone from a text message,

like the unwanted ringing of a phone from a call, is an intrusion into peace

and quiet in a realm that is private and personal. This is the very harm that

Congress addressed.No. 19

‐ 1738 7

The Eleventh Circuit treated the injury in its case as ab

‐

stract partly because common law courts generally require a

much more substantial imposition—typically, many calls—to

support liability for intrusion upon seclusion. See, e.g.

, Sofka v.

Thal

, 662 S.W.2d 502, 511 (Mo. 1983). But when Spokeo in

‐

structs us to analogize to harms recognized by the common

law, we are meant to look for a “close relationship” in kind,

not degree. See 136 S. Ct. at 1549. In other words, while the

common law offers guidance, it does not stake out the limits

of Congress’s power to identify harms deserving a remedy.

Congress’s power is greater than that: it may “elevat[e] to the

status of legally cognizable injuries concrete, de facto injuries

that were previously inadequate in law.” Id. (alteration in

original) (quoting Lujan v. Defs. of Wildlife

, 504 U.S. 555, 578

(1992)). A few unwanted automated text messages may be too

minor an annoyance to be actionable at common law. But

such texts nevertheless pose the same kind of harm that com

‐

mon law courts recognize—a concrete harm that Congress

has chosen to make legally cognizable. 2 Van Patten

, 847 F.3d

at 1043.

2 The Eleventh Circuit arguably limited its holding to the receipt of

one text message in violation of the Act, see Salcedo

, 936 F.3d at 1174

(J. Pryor, J., concurring in judgment only), suggesting that it might come

out differently in a case in which a greater number of texts strengthened

the analogy to the common law tort. The Second Circuit, by contrast, did

not even mention the number of texts at issue in Melito

, 923 F.3d at 92–93,

and the Ninth Circuit held that standing existed in Van Patten when the

defendant allegedly sent only two texts, 847 F.3d at 1041–43. For the rea

‐

sons we’ve explained, we agree with the Second and Ninth Circuits that

the number of texts is irrelevant to the injury

‐ in

‐ fact analysis.8 No. 19

‐ 1738

We therefore agree with the Second and Ninth Circuits

that unwanted text messages can constitute a concrete injury

‐

in

‐ fact for Article III purposes.

III.

With standing out of the way, we turn to the merits. We

previously addressed the same provision in Blow v. Bijora,

Inc.

, 855 F.3d 793 (7th Cir. 2017), but at that time, a 2015 FCC

Order interpreting the Act was on the books. We held that

“absent a direct appeal to review the 2015 FCC Order’s inter

‐ pretation,” the Hobbs Act required us to adopt the FCC’s def

‐

inition of an “automatic telephone dialing system.” Id. at 802;

see 28 U.S.C. § 2342(1). But since we decided Blow

, there has

been just such a “a direct appeal to review” the FCC Order:

the D.C. Circuit struck down the 2015 FCC interpretation in

ACA International v. FCC

, 885 F.3d 687, 695 (D.C. Cir. 2018).

And contrary to Gadelhak’s assertion, ACA International did

not leave prior FCC Orders intact. Instead, the D.C. Circuit

clarified that its review also covered “the agency’s pertinent

pronouncements”—its prior Orders. Id. at 701. Neither Blow

nor any FCC Order binds us in this case. See Glasser v. Hilton

Grand Vacations Co.

, Nos. 18

‐ 14499 & 18

‐ 14586, 2020 WL

415811, at *6 (11th Cir. Jan. 27, 2020); Marks v. Crunch San Di

‐

ego, LLC

, 904 F.3d 1041, 1049–50 (9th Cir. 2018); see also

Dominguez v. Yahoo, Inc.

, 894 F.3d 116, 119 (3d Cir. 2018) (im

‐ plicitly reaching the same conclusion by declining to defer to

any FCC Order). We therefore interpret the statute’s text as

though for the first time.

There are at least four ways of reading the statutory defi

‐

nition of an “automatic telephone dialing system.” First, the

phrase “using a random or sequential number generator”

might modify both store and produce

, which would mean thatNo. 19

‐ 1738 9

a device must be capable of performing at least one of those

functions using a random or sequential number generator to

qualify as an “automatic telephone dialing system.” This is

how the Third and Eleventh Circuits interpret the statute.

Dominguez

, 894 F.3d at 119; Glasser

, 2020 WL 415811, at *2. 3

Second, the phrase might describe the telephone numbers them

‐

selves, specifying that the definition captures only equipment

that dials randomly or sequentially generated numbers. This

is how the district court interpreted the provision. Third, the

phrase might limit only the word produce

, which would mean

that the definition captures not only equipment that can pro

‐

duce numbers randomly or sequentially, but also any equip

‐

ment that can simply store and dial numbers. This is the Ninth

Circuit’s interpretation. Marks

, 904 F.3d at 1052. Finally, the

phrase could describe the manner in which the telephone

numbers are to be called

, regardless of how they are stored,

produced, or generated. Some courts—including the district

court in this case—have alluded to this possibility, although

none has adopted it. See, e.g.

, Glasser

, 2020 WL 415811, at *7.

3 In Dominguez v. Yahoo, Inc. ( Dominguez II ), the Third Circuit ex

‐ plained that after ACA International

, it would revert to the interpretation it

had adopted before the 2015 FCC Order. 894 F.3d at 119. Before the Order,

the court had held that the definition covered equipment that “may have

the capacity to store or to produce the randomly or sequentially generated

numbers to be dialed,” and then asked the district court on remand to con

‐

sider how a number can be stored using a random number generator.

Dominguez v. Yahoo, Inc. ( Dominguez I ), 629 F. App’x 369, 372 n.1 (3d Cir.

2015) (emphasis omitted). Dominguez I is not perfectly clear about which

interpretation it applies, but the remand suggests that it reads “using a

random or sequential number generator” to describe how the numbers

may be stored or produced—consistent with the first interpretation that

we summarize.10 No. 19

‐ 1738

A.

We begin with the interpretation adopted by the Third

and Eleventh Circuits. Under their reading, the phrase “using

a random or sequential number generator” modifies both

“store” and “produce,” defining the means by which either

task must be completed for equipment to qualify as an “auto

‐

matic telephone dialing system.” That is, the statute ad

‐

dresses:

equipment which has the capacity—

(A) to store or produce telephone numbers to be

called, using a random or sequential number gener

‐

ator ; and

(B) to dial such numbers.

AT&T advocates this reading, which would exclude its cus

‐

tomer feedback tool because the tool lacks the capacity either

to store or to produce telephone numbers using a number

generator. Instead, the tool dials numbers only from a cus

‐

tomer database.

This interpretation is certainly the most natural one based

on sentence construction and grammar. As the Eleventh Cir

‐

cuit explained, “[w]hen two conjoined verbs (‘to store or pro

‐ duce’) share a direct object (‘telephone numbers to be called’),

a modifier following that object (‘using a random or sequen

‐

tial number generator’) customarily modifies both verbs.”

Glasser

, 2020 WL 415811, at *2. The placement of the comma

before “using a random or sequential number generator” in

the statute further suggests that the modifier is meant to ap

‐ ply to the entire preceding clause. See A NTONIN S CALIA &

B RYAN A. G ARNER

, R EADING L AW : T HE I NTERPRETATION OF

L EGAL T EXTS 150 (2012). That clause is driven by the twoNo. 19

‐ 1738 11

verbs, “to store or produce.” The sentence’s construction thus

seems to encourage applying the phrase “using a random or

sequential number generator” to both verbs.

But this first interpretation runs into a problem: as one dis

‐

trict court wrote, “it is hard to see how a number generator

could be used to ‘store’ telephone numbers.” Pinkus v. Sirius

XM Radio, Inc.

, 319 F. Supp. 3d 927, 938 (N.D. Ill. 2018). AT&T

counters that a device that generates random numbers and

then dials them does, technically, “store” such a number for

the fleeting interval between those two functions. While that

may be true as a technical matter, as a matter of ordinary us

‐

age it’s hard to say that the random number generator is “stor

‐ ing” in any notable way. More persuasive, however, is the

point that some systems “store” randomly generated num

‐

bers for much longer than a few fleeting moments. The record

before the FCC reveals that at the time of the statute’s enact

‐

ment, devices existed with the capacity to generate random

numbers and then store them in a file for a significant time

before selecting them for dialing. 4 See Noble Systems Corp.,

Comments in Response to the FCC’s Request for Comments

of the Interpretation of the TCPA in Light of the 9th Circuit’s

Decision in Marks v. Crunch San Diego 12–15 (Oct. 16, 2018),

https://ecfsapi.fcc.gov/file/1016271761504/Noble_Sys

‐

tem_Comments_FCC_DA18

‐ 1014_FINAL.pdf. The capacity

for storage is more central to such a device’s function.

Gadelhak responds that if the Act had meant to capture

random

‐ generation devices defined by their storage

4 For a more fulsome history of the statute and the FCC’s regulations

interpreting it, see both Glasser

, 2020 WL 415811, at *4–5, and Marks

, 904

F.3d at 1043–48.12 No. 19

‐ 1738

capacities, it needn’t have used the word “store” at all. After

all, such a device also necessarily can “produce” numbers us

‐ ing a number generator, rendering the “store” option in the

statute superfluous. That surplusage is not a deal

‐ breaker. See

S CALIA & G ARNER

, supra

, at 176–77 (“Sometimes drafters do re

‐

peat themselves and do include words that add nothing of

substance, either out of a flawed sense of style or to engage in

the ill

‐ conceived but lamentably common belt

‐ and

‐ suspend

‐

ers approach.”). Given the range of storage capacities among

telemarketing devices at the time of enactment, it is plausible

that Congress chose some redundancy in order to cover “the

waterfront.” Glasser

, 2020 WL 415811, at *3.

Notwithstanding the difficulties posed by this interpreta

‐

tion, we think that the language bears it. But because of those

difficulties, we proceed to consider whether any of the other

possibilities fares better.

B.

The district court favored the next option: that “using a

random or sequential number generator” modifies the “tele

‐ phone numbers” that are dialed. Since the telephone numbers

themselves obviously lack the capacity to “us[e]” a number

generator, the phrase really describes the means by which tel

‐ ephone numbers are generated

, as follows:

equipment which has the capacity—

(A) to store or produce telephone numbers to be

called, [generated] using a random or sequential

number generator ; and

(B) to dial such numbers.No. 19

‐ 1738 13

Under this interpretation, an “automatic telephone dialing

system” is equipment with the capacity to store or produce

telephone numbers generated using a random or sequential

number generator as well as the capacity to dial those num

‐

bers. Because AT&T’s system cannot generate random strings

of numbers for itself and instead dials only existing numbers

from AT&T accounts, the district court held that it could not

satisfy the statutory definition.

The district court’s interpretation avoids the problems as

‐

sociated with the word “store.” But it has a problem of its

own: the grammatical structure of the sentence. The phrase

“using a random or sequential number generator” is an ad

‐

verbial phrase with an elided preposition—it means “[by] us

‐ ing a random or sequential number generator.” As an adver

‐

bial phrase that describes how something is to be done, it can

‐

not modify a noun in this context. So, to arrive at its reading,

the district court had to insert a significant word into the stat

‐

ute that simply isn’t there. Although the district court’s ver

‐

sion of the statute is clearer and therefore tempting, “our task

is to interpret the words of Congress, not add to them.” Evans

v. Portfolio Recovery Assocs., LLC

, 889 F.3d 337, 346 (7th Cir.

2018) (citation omitted). The words of Congress, as written,

do not permit this second interpretation.

C.

Gadelhak presses the third option: that the phrase “using

a random or sequential number generator” modifies only the

equipment’s capacity to “produce.” With emphasis, the defi

‐

nition would read:

equipment which has the capacity—14 No. 19

‐ 1738

(A) to store or produce telephone numbers to be

called, using a random or sequential number gener

‐

ator ; and

(B) to dial such numbers.

To Gadelhak, it doesn’t matter that AT&T’s system cannot

generate random or sequential ten

‐ digit numerical strings. As

he sees it, the capacity to produce numbers using a random

number generator is only one means of meeting the statutory

definition. Gadelhak argues that the disjunctive “or” in “store

or produce” means that an “automatic telephone dialing sys

‐

tem” need not produce numbers at all. Since “using a random

or sequential number generator” modifies only “produce,”

Gadelhak argues that all equipment with the capacity to store

telephone numbers to be called and to dial those numbers

qualifies as an automatic telephone dialing system. This is the

interpretation that the Ninth Circuit adopted in Marks v.

Crunch San Diego

.

This interpretation eliminates the problem of the first

one—that the phrase is an admittedly imperfect fit for the

verb “store.” And it does not require us to add a word to the

statute as the second one does. But Gadelhak’s approach has

a fatal flaw of its own: it requires us to contort the statutory

text almost beyond recognition. Everyone agrees that “tele

‐ phone numbers to be called” is the object of both “store” and

“produce.” That makes sense because “produce” is not set off

from “store” in the text, either with the infinitive “to” or with

a comma. See S CALIA & G ARNER

, supra

, at 148–49. It would be

unnatural, then, to splice “store” and “produce” to have the

final phrase, “using a random or sequential number genera

‐

tor,” modify only the latter verb. Gadelhak asks us to reorder

the sentence to separate “store” and “produce” but to clarifyNo. 19

‐ 1738 15

that “telephone numbers” is the object of both. That would be

a significant judicial rewrite.

Nonetheless, Gadelhak maintains that the statutory struc

‐

ture requires this reading. He emphasizes that the statute

carves out a defense for recipients who have given their prior

express consent. See 47 U.S.C. § 227(b)(1)(A) (authorizing the

use of an automatic telephone dialing system for calls or texts

“made with the prior express consent of the called party”). If

an “automatic telephone dialing system” is defined by its ca

‐ pacity to generate numbers at random, Gadelhak says, it

would be impossible for a party ever to take advantage of the

consent defense except by coincidence. He explains that a

caller could not know in advance whether the telephone num

‐

ber, having been randomly generated, would belong to a

party who had previously consented to being called. See also

Marks

, 904 F.3d at 1051 (adopting this argument). But as an

‐

other court explained, “it is possible to imagine a device that

both has the capacity to generate numbers randomly or se

‐ quentially and can be programmed to avoid dialing certain

numbers ....” Pinkus

, 319 F. Supp. 3d at 939. Gadelhak’s ra

‐

tionale for choosing an atextual interpretation is therefore un

‐ persuasive.

Gadelhak has one last card to play: he insists that Con

‐

gress blessed his interpretation of the statute when it

amended the Act in 2015. At that time, the D.C. Circuit had

not yet struck down the 2015 FCC Order interpreting the stat

‐

ute in Gadelhak’s favor. Gadelhak asserts that Congress es

‐ sentially ratified that interpretation when it amended the stat

‐

ute in 2015 to add an exception for government debt collection

and declined to amend the definition in any other respect. See

Pub. L. No. 114

‐ 74, § 301, 129 Stat. 584, 588 (2015). We reject16 No. 19

‐ 1738

this argument, as has every circuit to consider it. See Glasser

,

2020 WL 415811, at *6 (collecting cases). Congressional failure

to act does not necessarily reflect approval of the status quo.

See Alexander v. Sandoval

, 532 U.S. 275, 292 (2001). And in any

event, the FCC’s interpretation of the statute was hardly set

‐

tled at the time of the congressional amendment—in 2015, the

D.C. Circuit was already reviewing ACA International

. It is

therefore particularly difficult to attribute acquiescence to

Congress’s actions that year.

Finally, it is worth noting the far

‐ reaching consequences

of Gadelhak’s ungrammatical interpretation: it would create

liability for every text message sent from an iPhone. That is a

sweeping restriction on private consumer conduct that is in

‐

consistent with the statute’s narrower focus. Gadelhak argues

that to qualify as an “automatic telephone dialing system” a

device need only have the “capacity

... to store

... telephone

numbers” and then to call or text them automatically. Every

iPhone today has that capacity right out of the box. An iPhone

of course can store telephone numbers; it can also send text

messages automatically, for example by using the “Do Not

Disturb While Driving” function. See How to Use Do Not Dis

‐

turb While Driving

, A PPLE (Sept. 19, 2019), https://support.ap

‐ ple.com/en

‐ us/HT208090 (“If someone sends you a message

[while this feature is turned on], they receive an automatic re

‐ ply letting them know that you’re driving.”). Every iPhone,

then, has the necessary capacities to meet the statutory defi

‐

nition. That means that under Gadelhak’s interpretation,

every call or text message sent from an iPhone without the

prior express consent of the recipient could subject the sender

to a $500 fine. See 47 U.S.C. § 227(b)(3)(B). Considering the

statute as a whole, that result makes little sense. The Act’s

other provisions address narrow conduct much more likely toNo. 19

‐ 1738 17

be performed by telemarketers than by private citizens—for

example, the use of “an artificial or prerecorded voice.” Id.

§ 227(b)(1)(A). The definition of an “automatic telephone di

‐ aling system” would be an outlier within the statutory

scheme if it were to capture such a wide swath of everyday

conduct.

D.

There is one final possibility: that “using a random or se

‐ quential number generator” modifies how the telephone

numbers are “to be called.” On this reading, an “automatic

telephone dialing system” is:

equipment which has the capacity—

(A) to store or produce telephone numbers to be

called[] using a random or sequential number gener

‐

ator ; and

(B) to dial such numbers.

In other words, the definition captures devices with the ca

‐ pacity to store or to produce telephone numbers that will be

dialed by a random or sequential number generator. The rec

‐

ord does not fully explain whether AT&T’s system has the

necessary capabilities to be considered an “automatic tele

‐ phone dialing system” under this definition; neither party ad

‐

vanced this reading and other courts have only danced

around it. See

, e.g.

, Glasser

, 2020 WL 415811, at *7 (identifying

this interpretation as “plausible” but rejecting it without com

‐

ment).

A close look convinces us that this fourth possibility is also

inferior to the first interpretation. Congress chose to insert a

comma between “to be called” and “using a random or18 No. 19

‐ 1738

sequential number generator.” And “[a] qualifying phrase

separated from antecedents by a comma is evidence that the

qualifier is supposed to apply to all the antecedents instead of

only to the immediately preceding one.” W ILLIAM N.

E SKRIDGE J R

., I NTERPRETING L AW : A P RIMER ON H OW TO R EAD

S TATUTES AND THE C ONSTITUTION 67–68 (2016) (citation omit

‐ ted). The comma separating “to be called” and “using a ran

‐

dom or sequential number generator” therefore indicates that

the modifier refers to the entire clause that precedes it—a

clause driven by the verbs “store” and “produce”—rather

than the phrase immediately adjacent to it.

Of course, we are mindful that “a purported plain

‐ mean

‐ ing analysis based only on punctuation is necessarily incom

‐ plete and runs the risk of distorting a statute’s true meaning.”

U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.

, 508 U.S.

439, 454 (1993). We tread especially carefully here, since the

comma seems to be ungrammatical under any interpretation.

As mentioned above, “using a random or sequential number

generator” is an adverbial phrase. To be more specific, it is a

restrictive adverbial phrase, because it provides information

that is essential to the meaning of the sentence. The grammar

and style treatise of record dictates that a comma is inappro

‐ priate for a restrictive adverbial phrase found at the end of a

sentence. T HE C HICAGO M ANUAL OF S TYLE ¶ 6.31 (17th ed.

2017).

But we have reason to be confident that the comma before

the modifier deliberately separates it from “to be called.” A

modifying clause following a comma tends not to modify the

very last antecedent before it when that antecedent is “inte

‐ grated” into a singular unit. Cyan, Inc. v. Beaver Cty. Emps. Ret.

Fund

, 138 S. Ct. 1061, 1077 (2018) (citation omitted). In theNo. 19

‐ 1738 19

context of autodialing, the phrase “telephone numbers to be

called” has consistently been used as an integrated unit. A

1986 patent for a method of randomizing telephone numbers,

for example, contains five references to “numbers to be

called.” U.S. Patent No. 4,741,028 (filed July 30, 1986). The

phrase was also common in the state antitelemarketing stat

‐

utes that preceded the federal legislation. Across statutes with

different sentence structures and different scopes, the phrase

“telephone numbers to be called” appears again and again.

See, e.g.

, M ASS

. G EN

. L AWS ch. 159 § 19B (1986); M ISS

. C ODE

A NN

. § 77

‐ 3

‐ 451 (1989); N.Y. G EN

. B US

. L AW § 399

‐ p (1988).

These uses suggest that “telephone numbers to be called” is a

single noun unit characterized by the purpose of the numbers.

The comma, therefore, seems to have been a deliberate draft

‐ ing choice to separate the modifying clause from the words

that immediately precede it.

Satisfied that “using a random or sequential number gen

‐

erator” does not describe how the numbers are “to be called,”

we are left again with the first interpretation. It is admittedly

imperfect. But it lacks the more significant problems of the

other three interpretations and is thus our best reading of a

thorny statutory provision. We therefore hold that the phrase

“using a random or sequential number generator” describes

how the telephone numbers must be “stored” or “produced.”

* * *

The district court held that AT&T’s system did not qualify

as an “automatic telephone dialing system” because it lacked

the capacity to generate random or sequential numbers. Alt

‐ hough we adopt a different interpretation of the statute, un

‐

der our reading, too, the capacity to generate random or20 No. 19

‐ 1738

sequential numbers is necessary to the statutory definition.

The district court’s judgment is therefore AFFIRMED.