ELIZABETH PANZARELLA; JOSHUA PANZARELLA, Individually and on behalf of all others similarly situated, Appellants v. NAVIENT SOLUTIONS, INC.
No. 20-2371
United States Court of Appeals for the Third Circuit
June 14, 2022
PRECEDENTIAL. On Appeal from the United States District Court for the Eastern District of Pennsylvania (Civil No. 2-18-cv-03735). District Judge: Honorable Petrese B. Tucker. Argued February 11, 2022. Before: GREENAWAY, JR., SCIRICA, and RENDELL, Circuit Judges.
James A. Francis
David A. Searles
Francis Mailman Soumilas
1600 Market Street
Suite 2510
Philadelphia, PA 19103
David P. Mitchell [ARGUED]
Maney & Gordon
101 East Kennedy Boulevard
Suite 1700
Tampa, FL 33602
Robert P. Cocco
Robert P. Cocco, P.C.
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Counsel for Appellants
Alan J. Butler
Megan Iorio
Christopher Frascella
1518 New Hampshire Avenue, N.W.
Washington, DC 20036
Counsel for Amicus/Appellants
Lisa M. Simonetti [ARGUED]
Greenberg Traurig
1840 Century Park East
Suite 1900
Los Angeles, CA 90067
Lindsay N. Aherne
Greenberg Traurig
1144 15th St.
Suite 3300
Denver, CO 80202
Joel M. Eads
Greenberg Traurig
1717 Arch Street Suite 400
Philadelphia, PA 19103
Counsel for Appellee
Rendell, Circuit Judge.
Elizabeth and Joshua Panzarella (“the Panzarellas“) sued Navient Solutions, LLC (“Navient“), claiming that, among other things, Navient violated the Telephone Consumer Protection Act of 1991,
I.
Navient serviced the student loans of Matthew Panzarella, Elizabeth‘s son and Joshua‘s brother. Matthew listed both his mother and brother as references on student loan applications and promissory notes and, in doing so, provided their cell phone numbers to Navient. Eventually, he became delinquent on his loans and failed to respond to Navient‘s attempts to communicate with him. In response, Navient contacted the Panzarellas. Call logs show that, over five months, Navient called the phone number alleged to belong to Elizabeth four times (three of which were unanswered, and one of which may have been answered) and the number alleged to belong to Joshua fifteen times (all unanswered).
During the relevant period, Navient used telephone dialing software developed by Interactive Intelligence Group, Inc (“ININ“),1 the “Interaction Dialer.” This software allows a user to “conduct[] campaigns” during which “calls are placed to contacts based upon information read from a contact list.” App. 185. For each campaign, the user may opt to use one of several dialing methods, which employ varying levels of automation. For example, in “Preview” mode, call center agents initiate calls, while, in modes such as “Predictive” and “Power,” the Interaction Dialer automatically dials telephone numbers.2
Notes
The Interaction Dialer cannot conduct campaigns on its own. Instead, it “is deployed across servers and workstations that collectively make up the system.” App. 200. Three servers are required: the Outbound Dialer Server, the Central Campaign Server, and a database server. During a campaign these three servers work together to make and process outbound calls. The Outbound Dialer Server makes the outbound calls, while the Central Campaign Server acts like an intermediary gathering data from and passing these data among the system‘s servers. The database server, which “often runs on dedicated hardware” yet “can reside on the [Central Campaign Server],” contains “a set of database tables that are created and managed automatically by Interaction Dialer” and the customer-created “contact list.” App. 200, 203. The Interaction Dialer relies on “external data sources for contacts [l]ists and campaign tables,” and these tables “must be managed by a database management system,” either Oracle RDBMS or Microsoft SQL Server. App. 205. Users may employ the Interaction Dialer‘s “Contact Import Wizard” to import contact data from their own sources or “create [their] contact tables manually.” App. 205, 209.
As is relevant here, in its configuration of the Interaction Dialer (the “ININ System“), Navient used a database server managed by Microsoft SQL Server (the “SQL Server“). The server performs two key functions for the ININ System. First, it stores a list of numbers associated with student loan accounts that have specific attributes (e.g., type of loan, stage of delinquency). Although the SQL Server can generate 10-digit random and sequential numbers in a ContactList table, all its stored telephone numbers “are pulled from Artiva,” Navient‘s separate database of account information. App. 123 ¶ 19. Second, the SQL Server plays a role in outbound calling campaigns, relaying the stored telephone numbers to the ININ System‘s other servers to enable the System to dial them.
This appeal concerns whether Navient used the ININ System in violation of the TCPA. The TCPA prohibits individuals from, among other things,
mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . .—
(i) to any emergency telephone line . . . ;
(ii) to the telephone line of any guest room or patient room of a hospital health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to the United States[.]
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.
The Panzarellas filed a putative class action complaint against Navient in the United States District Court for the Eastern District of Pennsylvania, alleging that Navient used an ATDS to call their and others’ cellphones without their prior express consent in violation of section
Navient sought summary judgment, arguing, among other things, that the Panzarellas’ “TCPA claims fail[ed]” because Navient did not call them “us[ing] an ATDS[.]” App. 62-63. It claimed it could not have done so as its ININ System did not qualify as an ATDS under section
The District Court granted summary judgment for Navient holding that Navient did not use an ATDS to place the calls at issue. It determined that Navient‘s ININ System lacked the necessary present capacity to store or produce telephone numbers using a random or sequential number generator. It reasoned, relying largely on the characterization of such a database server contained in the Interaction Dialer‘s manual, that the SQL Server was distinct from the ININ dialing system. Consequently, the District Court found that the Panzarellas had adduced “no evidence to suggest that the ININ dialing system on its own is an ATDS” and granted Navient‘s motion for summary judgment on the Panzarellas’ TCPA claims. App. 10 (emphasis added).
The Panzarellas timely appealed their TCPA claims and seek reversal only of the District Court‘s grant of summary judgment for Navient on these claims.
II.6
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III.
A.
The Panzarellas asserted that Navient violated section
The TCPA requires that we consider the “equipment” that the defendant employs to conduct calling campaigns.
As “[s]tatutory language cannot be construed in a vacuum,” we turn next to equipment‘s context. Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 367 (2018) (alteration in original) (citation omitted). This context shows that Congress drafted the TCPA to regulate combinations of devices that, when used together, functioned as autodialers. Critically, Congress chose to regulate the use of “automatic telephone dialing system[s].”
The FCC‘s interpretations of equipment bolster our construction.7 See Daubert v. NRA Grp., LLC, 861 F.3d 382, 389-90 (3d Cir. 2017) (considering FCC rulings as part of its interpretation of the TCPA). Since 2003, the FCC has interpreted the TCPA to regulate certain combinations of software and hardware. Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14,014, 14,091-93 (2003) (determining predicative dialers qualified as ATDSs because “[t]he hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers” (emphasis added)). Recently, in 2015, it considered whether a dialing system composed of devices owned and operated by separate entities yet used together qualified as an ATDS. Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7977-78 (2015). In a portion of the ruling left intact by the D.C. Circuit, see ACA
Int‘l v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018), the FCC determined that such “a combination of equipment” could constitute an ATDS as long as this “voluntary combination” meets the ATDS definition‘s requirements, Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at 7978. Emphasizing the statute‘s use of “system,” it reasoned that the TCPA “contemplate[s]” that “various pieces of different equipment and software can be combined to form an [ATDS].” Id.
Equipment‘s ordinary meaning, its context, and the FCC‘s interpretation of the ATDS definition, then, all point to the same construction: an ATDS may include several devices that when combined have the capacity to store or produce telephone numbers using a random or sequential number generator and to dial those numbers.
Applying this construction here, we find that the District Court erred in holding that Navient‘s dialing system was not an ATDS because it viewed the SQL Server‘s capacities as distinct from the ININ System‘s. Navient relied on the SQL Server alongside the ININ System‘s other components to conduct dialing campaigns. This server not only stored the telephone numbers that Navient contacted during campaigns, but it also communicated with the ININ System‘s other servers, so the system could call them. Indeed, the Interaction Dialer‘s manual confirms that this dialer cannot conduct these campaigns without a database server, like the SQL Server. Navient points out that Microsoft rather than ININ developed the SQL Server, and this server resides on its own dedicated hardware. But this does not matter. As the TCPA requires us to consider whether all the devices employed together to conduct dialing campaigns constitute an ATDS, we conclude that Navient‘s “equipment” includes the SQL Server. Because the District Court determined that Navient‘s dialing system was not an ATDS only after it excluded the SQL Server from this system, we cannot affirm the District Court‘s grant of summary judgment on these grounds.
B.
Still, Navient insists that we should find that the ININ System, including the SQL Server, could not qualify as an ATDS under section
We disagree. Both Navient and the concurrence seize on language in Duguid, claiming that it constitutes a holding that an ATDS must actually use a random or sequential number generator. But that is not the case. The issue before the Court was quite different. In Duguid, the Supreme Court interpreted the TCPA‘s ATDS definition to resolve a circuit split between the Second, Sixth, and Ninth Circuits on one side and our Court, the Seventh, and Eleventh Circuits on the other. 141 S. Ct at 1168 & n.4. The former group held that the phrase “using a random or sequential number generator” modifies “produce” but not “store.” Duran v. La Boom Disco, Inc., 955 F.3d 279, 283-84, 287 (2d Cir. 2020); Allan v. Pa. Higher Educ. Assistance Agency, 968 F.3d 567, 579-80 (6th Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018). The latter, on the other hand, determined that it modifies both “produce” and “store.” Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 468 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020). Relying primarily on its understanding of section 227(a)(1)‘s syntax and its application of the series-qualifier canon, the Court adopted the latter group‘s construction of the TCPA, holding that, “[t]o qualify as an [ATDS,] a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Duguid, 141 S. Ct. at 1167, 1169-70 (emphasis added).
The opinion‘s imprecise use of language ultimately provides no support for Navient‘s assertion that the Court held that, to qualify as an ATDS, the equipment “must not only have a present capacity to generate random or sequential numbers and then dial them, it must [also] actually use that generator.” Appellee‘s Br. 19 (emphasis in original). Although the Court restated the full ATDS definition—including “capacity“—when it summarized its holding, 141 S. Ct. at 1168; id. at 1173 (“We hold that a necessary feature of an [ATDS] under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” (emphasis added)), in other places, it described the ATDS definition in terms of the “use” of a random or sequential number generator, e.g., id. at 1170 (“In sum, Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.” (emphasis added)); id. at 1171 (“The statutory context confirms that the autodialer definition excludes equipment that does not ‘us[e] a random or sequential number generator.‘” (emphasis added) (quoting
when an opinion‘s language revises (for easier reading) the statute‘s own. Better to heed the statutory language proper.” (alteration in original) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979))). Therefore, Duguid does not stand for the proposition that a dialing system will constitute an ATDS only if it actually generates random or sequential numbers.9
Instead, under section
or sequential number generator” modifies the phrase “to store or produce telephone numbers to be called,” which, in turn, modifies “capacity.” “[U]sing a random or sequential number generator,” thus, refers to how an ATDS must be capable of storing or producing telephone numbers. So, if we were to decide whether Navient‘s dialing system qualifies as an ATDS, section
Perhaps, the Supreme Court might interpret section 227(a)(1)‘s use of “capacity” differently when a case provides the occasion for it to do so, but, at this moment, that prospect is not enough for us to discard Dominguez. See Rehkop v. Berwick Healthcare Corp., 95 F.3d 285, 291 (3d Cir. 1996).
concerning the “present capacity” of the entire ININ System (inclusive of the SQL Server) to employ random- or sequential-number generation to store or produce telephone numbers. For this reason, we cannot hold that ININ System does or does not qualify as an ATDS.10
IV.
While the District Court erred in granting summary judgment based on whether the ININ System qualified as an ATDS, summary judgment may still have been properly granted if we find the record makes clear that, when Navient called the Panzarellas, it did not “make [these calls] . . . using any [ATDS].”
“As in any statutory construction case, [w]e start, of course, with the statutory text, and proceed from the understanding that [u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.” Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (alterations in original) (internal quotation marks and citation omitted). We, then, must consider how an ordinary person would understand the phrase “making any call . . . using any [ATDS].”
This inquiry gets us only so far for use is an “elastic” term with a range of possible meanings. Smith v. United States, 508 U.S. 223, 241-43 (1993) (Scalia, J., dissenting) (listing a few of use‘s varied definitions). For example, in Smith, the Justices, relying on different understandings of the ordinary meaning of to use an object or instrument, adopted different interpretations of the phrase to “use[] . . . a firearm” in
the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
broader reading of to use a firearm that would allow a broader range of uses (such as “pistol-whip[ping]“) based not only on the plain meaning of use but also on the context of the surrounding statutory provisions. See id. at 228-37 (majority opinion).
We encounter a similar predicament here. As the D.C. Circuit observed in ACA International in considering the possible interpretations of
the “capacity” both to perform the autodialer functions set out in the statutory definition and to perform as a traditional phone, does the bar against “making any call using” an ATDS apply only to calls made using the equipment‘s ATDS functionality? Or does the bar apply to all calls made with a device having that “capacity,” even ones made without any use of the equipment‘s autodialer capabilities? Or does the bar apply to calls made using certain autodialer functions, even if not all of them?
885 F.3d at 704 (emphasis added) (declining to resolve this question when the petitioners did not challenge an interpretation of
Starting with the context of the phrase “using any [ATDS],” we look to
A narrower construction of use hews to this touchstone by focusing
We know Congress was concerned with the use of ATDS as autodialers because the TCPA proscribes only a few specific uses of ATDSs. Mims v. Arrow Fin. Servs, LLC, 565 U.S. 368, 373 (2012) (explaining the TCPA proscribes calls made using an ATDS to emergency numbers, hospital patients, and cellphone and pager numbers; residential telephones without the recipient‘s consent; and the use of an ATDS to tie up more than one telephone line of a business at the same time). It crafted these prohibitions with autodialing‘s harms in mind. Duguid, 141 S. Ct. at 1171. Congress enacted the TCPA in response to “[v]oluminous consumer complaints about abuses of telephone technology[.]” Mims, 565 U.S. at 370-71. Yet, it “found autodialer technology to be uniquely harmful” as these devices could tie up the phone lines of businesses and emergency services and impose costs on randomly dialed cellphone users. Duguid, 141 S. Ct. at 1167.
Of course, at the highest level of generality, “Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls.” Daubert, 861 F.3d at 389 (quoting Gager, 727 F.3d at 268). Even so, the legislative history makes clear that it did not do so “to make all unsolicited telemarketing or facsimile advertising illegal.” H.R. Rep. No. 102-317, at 6 (1991). Such blunt legislation would have, in fact, frustrated Congress‘s aims. See Telephone Consumer Protection Act of 1991, Pub. L. 102-243, § 2(9), 105 Stat. 2394, 2394 (recognizing that “[i]ndividuals’ privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices“). Rather, in committee reports, Congress explained that the TCPA‘s prohibitions targeted “autodialed calls.” S. Rep. No. 102-177, at 9 (1991) (explaining the bill “would ban all autodialed calls, and artificial or prerecorded calls, from being made to emergency lines and paging and cellular phones“); S. Rep. No. 102-178, at 10 (1991) (summarizing the restrictions as “ban[ning] all autodialed calls, and artificial or prerecorded calls, to emergency lines and paging and cellular phones“); see also H.R. Rep. No. 102-317, at 6. Put differently, it “meant to use a scalpel” to address specific harms autodialing caused. Duguid, 141 S. Ct. at 1171.
Despite the text‘s lack of clarity,
This construction leaves us with another question to resolve: what does it mean to make a call using an ATDS‘s autodialing functionalities? Here, the TCPA‘s definition of an ATDS proves illuminating. It shows that, at its core, autodialing is the “product[ion] or stor[age] of telephone numbers to be dialed, using a random or sequential number generator.”
What is more, when we interpret “making any call . . . using any [ATDS]” to mean making any call using any ATDS‘s ability to use a random or sequential number generator to produce or store telephone numbers,
Congress‘s decision to rely on a similar structure when drafting the TCPA makes sense. At the time of the TCPA‘s enactment, autodialers worked in a variety of ways. See Noble Systems Corp., Comments in Response to the FCC‘s Request for Comments on the Interpretation of the TCPA in Light of the Ninth Circuit‘s Decision in Marks v. Crunch San Diego, 10-12, WC Docket Nos. 18-152 & 02-278, FCC DA 18-1014 (Oct. 16, 2018), available at https://www.fcc.gov/ecfs/file/download/DOC-599f9ebe18c00000-A.pdf?file_name=Noble_System_Comments_FCC_DA18-1014_FINAL.pdf (discussing various autodialer patents issued in the years before the TCPA‘s enactment). Moreover, Congress understood not only that telemarketers could transform ordinary computers into autodialers through minor and inexpensive modifications, The Automated Telephone Consumer Protection Act of 1991: Hearing on S. 1462 before the Sen. Subcomm. on Commc‘ns of the Comm. on Commerce, Sci., and Transp., 102d Cong. 18 (1991) [hereinafter 1991 Senate Hearing] (testimony of Robert S. Bulmash), but also that they were increasingly relying on computerized databases containing telephone numbers during their dialing campaigns, H.R. Rep. No. 102-317, at 7-8 (describing the increasing reliance on computerized databases for telemarketing and noting that the industry has responded with markets for such software, lists of consumer data, and guides on how to make the best use of these tools). The TCPA‘s statutory design fit (and continues to fit) this shifting technological landscape. See 1991 Senate Hearing, supra, at 19 (testimony of Robert S. Bulmash) (discussing the telemarketing industry‘s increasing use of “predictive dialers“). A broad definition of an ATDS based on a dialing system‘s “capacity” ensured that telemarketers could not evade all TCPA scrutiny at the outset through arguments about how their precise systems operate. The narrow prohibitions balanced the definition‘s breadth, imposing liability only when those telemarketers used their dialing systems to cause the harms the TCPA sought to eliminate.12
A simple hypothetical illustrates how sections
Only the latter reading gives effect to Congress‘s intent in enacting the TCPA. Because Junk Call dials random or sequential numbers only when it employs automatic mode, automatic-mode calls, but not list-mode calls, threaten the harm the TCPA targets—telemarketing “that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.” Duguid, 141 S. Ct. at 1171. Congress would have little reason to expose Junk Call to liability for its list-mode calls as these calls do not present these risks. If we interpreted
Here, the Panzarellas’ claims fail because the record establishes that Navient did not rely on random- or sequential-number generation when it called them. Even if we assume that the ININ System, through the SQL Server, had the capacity to generate lists of random or sequential telephone numbers and was thus an ATDS, Navient did not use the ININ System in this way. Instead, it selected a dialing campaign‘s potential targets from “specific, curated borrower lists.” App. 124 ¶ 22. These lists contained contact information drawn from Navient‘s internal database of account information rather than computer-generated number tables. Consequently, the lists that served as the basis for its calling campaigns contained “specific numbers associated with [Navient‘s] student loan accounts.” App. 125 ¶ 30.
When it placed the calls at issue, Navient drew the Panzarellas’ cellphone numbers from such a list. The Panzarellas have identified no evidence that even suggests Navient called them in anything but a targeted manner. This, of course, makes sense. Navient wanted to speak specifically to the Panzarellas because Matthew‘s loans had become delinquent.13 Besides, what reason would Navient have to call phone numbers unrelated to borrowers’ accounts when following up on delinquent loans?
At bottom, as the record contains no evidence that Navient used the ININ System to randomly or sequentially produce or store the Panzarellas’ cellphone numbers and therefore no evidence that Navient made a telephone call using an ATDS in violation of the TCPA, Navient is entitled to summary judgment on the Panzarellas’ TCPA claims.
V.
Because, even if Navient‘s ININ System qualified as an ATDS under the TCPA, there is no genuine issue of material fact as to whether Navient called the Panzarellas’ cellphones without their consent “using an[] [ATDS]” in violation of
GREENAWAY, JR., Circuit Judge, concurring in the judgment.
While I respect my colleagues’ position and agree with the decision to affirm,1 I disagree on the fundamental question we must resolve. According to the majority, that question is: was Navient Solutions, Inc. (“Navient“) using an automatic telephone dialing system (“ATDS“) under
I.
Initially, we cannot skip to
Under
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.
Recently, the Supreme Court resolved a circuit split as to whether the clause “using a random or sequential number generator” in
In Duguid, the Court considered whether Facebook violated the TCPA by sending automated text messages to numbers associated with Facebook accounts any time those accounts were accessed by an unrecognized number. Id. at 1168. Importantly, Facebook merely stored numbers associated with the accounts—it did not store or produce the numbers using a random or sequential number generator. Id. Reasoning that “using a random or sequential number generator” modifies both “store” and “produce” in
Writing for the Court, Justice Sotomayor asserted: “Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.” Id. (emphasis added). In my view, this indicates that the mere capacity to use a number generator is insufficient for equipment to constitute an ATDS.
Admittedly, whether the requirement that equipment must actually “use” a number generator is part of Duguid‘s holding as opposed to dicta is equivocal.2 Compare id. (“in all cases . . . the equipment . . . must use a . . . number generator“) with id. at 1173 (“We hold that a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called“). Nonetheless, where, as here, the Supreme Court has offered its “well-considered” guidance on the precise issue that we confront, that guidance—dicta or not—warrants our attention. IFC Interconsult, AG v. Safeguard Int‘l Partners, LLC., 438 F.3d 298, 311 (3d Cir. 2006) (“we pay due homage to the Supreme Court‘s well-considered dicta as pharoi that guide our rulings“).
Construing
At bottom, the broad definition of ATDS articulated by the majority in this case is inconsistent with the concerns animating Duguid. The majority agrees that Congress’ intent was to stop autodialed calls; however, the majority broadly construes ATDS in
Further, I am not persuaded that the majority‘s approach is necessary for addressing dialing systems that can switch between placing calls using automatic mode (“which dials random or sequential numbers“) and list mode (“which dials the telephone numbers imported into [an entity‘s] customer list“). Majority Op. 22. In the majority‘s view, these dialing systems qualify as ATDSs—either way the switch is flipped—because they have the present capacity to generate random telephone numbers and then dial them. See Dominguez v. Yahoo, 894 F.3d 116, 119-20, 120 n.23 (3d Cir. 2018). However, only the calls made using automatic mode would violate the TCPA, as the calls made using list mode do not “threaten the harm the TCPA targets—telemarking ‘that risks dialing emergency lines randomly or typing up all sequentially numbered lines at a single entity.‘” Majority Op. 22 (citing Duguid, 141 S. Ct. at 1171).
But if the goal is to prohibit only the autodialed calls, why should we construe
II.
Even considering the SQL Server as part of the ININ System, I would hold that Navient‘s dialing system is not an ATDS. Navient‘s dialing system does not currently store or produce numbers using a random or sequential number generator—and the Panzarellas do not argue otherwise. In its current configuration, the SQL Server merely stores a list of numbers associated with student loan accounts that have specific attributes (e.g., type of loan, stage of delinquency). Then, the numbers are uploaded to the ININ System to initiate a calling campaign.
That the SQL Server could be reconfigured to use a random or sequential number generator does not render Navient‘s dialing system an ATDS. Duguid instructs that
Because I do not think that Navient‘s dialing system qualifies as an ATDS, I would not reach the issue of whether Navient made calls “using any [ATDS]” under
The concurrence suggests this reading of Duguid is well considered, but it makes little effort to square this interpretation of section