Samantha L. Southall(left) and Jennifer Olmedo-Rodriguez(right) shareholders wtih Buchanan Ingersoll & Rooney.

For the second time in the past few months, businesses in the Southeast have received some good news in their fight against expensive nuisance lawsuits arising under the Telephone Consumer Protection Act of 1991 (TCPA).

In the second landmark decision about the TCPA to come down from the U.S. Court of Appeals for the Eleventh Circuit within the span of five months, the court held that calls placed without the use of a phone system that dialed randomly or sequentially generated phone numbers to reach the recipient (or required human intervention to place the call) do not meet the definition of an "automatic telephone dialing system" and, therefore, are not covered by the TCPA.

Just like the recent decision in Salcedo v. Hanna, 936 F. 3d 1162 (11^th Cir. 2019), issued by the court at the end of August—the Eleventh Circuit's recent decision in Glasser v. Hilton Grand Vacations, 2020 US App LEXIS 2481 (11^th Cir., Jan. 27, 2020), provides much-needed guidance to state and federal courts in Florida, Georgia and Alabama when considering TCPA claims. And, once again, the Eleventh Circuit split from at least one of its sister circuits, providing yet another conflicting opinion that only accentuates the need for the U.S. Supreme Court to weigh in on what the TCPA actually prohibits.

In a nutshell, the TCPA prohibits unsolicited communications to residential lines, cellular telephones and fax machines. Specifically with respect to the Glasser case, the TCPA prohibits businesses and individuals from using an "automatic telephone dialing system" to call cellular telephone lines without the called party's consent. The question is, however, what exactly is an "automatic telephone dialing system?"

The TCPA defines an automatic telephone dialing system or ATDS as follows: "equipment which has the capacity—to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers."

Leave it to lawyers to offer conflicting interpretations as to what this definition means in the real world and for courts to issue opinions adopting conflicting interpretations. The result of this wordsmithing is uncertainty for litigants who face differing definitions (and courts applying those disparate definitions) depending on where they are litigating their cases.

The Glasser opinion seeks to clarify—at least for litigants in Florida, Georgia and Alabama—exactly what type of system can be considered an ATDS. After parsing the grammar and punctuation used in the statute as well as reviewing the Federal Communications Commission's historical interpretation of an ATDS through 2003 and the commission's subsequent expansion of that definition in 2003, the Glasser court focused the majority of its analysis on whether calls made using a "predictive dialer" were prohibited by the TCPA.

Rather than dialing randomly or sequentially generated numbers, predictive dialers call a list of pre-determined customers or potential customers from a database of existing numbers.

The FCC and courts throughout the country—relying on the TCPA's use of the word "capacity" in the definition of an ATDS—began interpreting the TCPA to prohibit calls placed by systems that generate random or sequential numbers as well as systems that dial numbers from a predetermined list of stored telephone numbers.

The Eleventh Circuit noted that this expansive definition resulted in sister courts expressing concern that "any device that could be modified to perform the functions of an auto-dialer, even a rotary telephone, now counted under the [TCPA]"—leading the Glasser court to note that "in the age of smartphones, it's hard to think of a phone that does not have the capacity to automatically dial telephone numbers stored in a list" giving the TCPA's definition of what constitutes an ATDS "an 'eye-popping' sweep."

Raising First Amendment concerns, among others, and expressly seeking to balance commercial and consumer interests, the Eleventh Circuit rejected the analysis of the Ninth Circuit and ultimately sided with the Third Circuit as well as with other trial courts throughout the country and held that because the phone systems at issue in the Glasser case did not use "randomly or sequentially generated numbers" and "required human intervention"—such that they were, therefore, not "automatic"—they could not constitute an auto-dialer and, therefore, "the act does not cover them."

The Glasser opinion—like the Salcedo opinion that is just a few months old—is another game changer for businesses fighting TCPA cases in the Eleventh Circuit. In a detailed and legally supportable opinion, the Eleventh Circuit provides binding precedent and clear legal rationale for trial courts seeking to adjudicate the seemingly relentless wave of TCPA lawsuits they are facing.

Importantly, businesses seeking to defend themselves against TCPA lawsuits now have another tool in their litigation arsenal when battling TCPA cases that seek to exploit businesses' ability to operate in a modern economy where technology provides numerous ways of communicating with customers and potential customers. Hopefully, the Supreme Court will weigh in sooner, rather than later.

Jennifer Olmedo-Rodriguez is the head of Buchanan Ingersoll & Rooney's Miami office and a shareholder in the litigation section.

Samantha Southall is a shareholder in the firm's litigation section in Philadelphia.