December 11, 2018
Stay in the Know
By Karl Koster, Noble Systems Intellectual Property and Regulatory Attorney
Attempting to render judicial decisions based on technology can be difficult, especially when judges are not familiar with the technology. When the law and technology intersect, accidents can occur. This is what appears to have happened in the recent 9th Circuit Telephone Consumer Protection Act’s (“TCPA”) decision, Marks vs Crunch. That court addressed the TCPA statutory definition of an automatic telephone dialing system (“ATDS”) and determined it included equipment that could store a number and dial that number. The language at issue included the well-known phrase “store or produce telephone numbers to be called, using a random or sequential number generator.”
While the court’s holding is very broad, what is noteworthy is how the court reached this conclusion. They found the TCPA’s statutory definition ambiguous and therefore interpreted it anew. The court appears to have been convinced it was ambiguous based on arguments that “a number generator is not a storage device; a device could not use ‘a random or sequential number generator’ to store telephone numbers.” With this understanding, the court found the language ambiguous and journeyed down the road of creating their own interpretation of the statutory language.
However, this approach seems to be predicated on random/sequential number generators at that time being incapable of storing numbers. Unfortunately, that understanding is not accurate.
One repository of technical information is the U.S. Patent Office. U.S. Patent 4,741,028, entitled “Method of Randomizing Telephone Numbers,” filed in 1986, discloses a dialer that can dial an entire range of 10,000 numbers in a central office exchange using random numbers and also sequentially generated numbers. Obviously, this illustrates that random/sequential number generators were used in dialers prior to the passage of the TCPA. But what is telling about the patent is that it describes two fundamental modes of using the generated numbers for dialing calls. In one mode, the system generates a number (i.e., a “record”) and then immediately dials the number. The process is then repeated. This is illustrated in FIG. 2 of that patent, shown below:
The other mode of operation is to generate the number (or record) and store it in a file. Numbers are generated and stored in the file, which is then used to originate the calls. This is illustrated in FIG. 3 of the patent, shown below:
These two modes of operation will be familiar to those with a technology background working in contact centers, but likely not to those judges or regulators addressing the TCPA’s definition of an ATDS.
The patent shows that it was well-known to use a random number generator (and sequential number generator) to “produce” a number that was immediately dialed, or “store” a number to be dialed. The concept of “producing” and “storing” such random/sequential numbers makes perfect sense in light of these two different operational methods.
Presumably, in creating the Telephone Consumer Protection Act of 1991, Congress wanted to stop indiscriminate telemarketing calls where callers were using random/sequential number generators and dialing the numbers. It would seem improbable that Congress would draft a statute that prohibited the operation illustrated in FIG. 2, without also regulating the operation shown in FIG. 3 (or vice versa). Indeed, Congress drafted the definition of an ATDS to encompass equipment that could “store or produce telephone numbers to be called, using a random or sequential number generator” and then dial them.
By that inclusion, it is evident that dialers at that time could employ random or sequential number generators to “store,” as well as “produce,” a number, and dial either type. Therefore, it should not be presumed that the statutory language is ambiguous. In fact, considering the identified patent, it becomes clear that the statutory language is deliberately and carefully crafted to cover the two common modes of operation. As we say in the law, the language is “spot-on” in addressing the problem at hand.
So now we can see that with a little technological understanding, such collisions of law and technology can be avoided. However, that does not help the industry to deal with the ‘accident’ that happened in the form of Marks v. Crunch.
The opinions presented here are those of Karl Koster, and not necessarily those of Noble Systems. The contents should not be construed as legal advice.
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