b'during the roughly five-year period beginning whencreate liability when calling from a list (as the Ninth Circuit Congress amended the TCPA to create the exemptionheld in Duguid) would be that any unsolicited call using a through the Supreme Courts decision in Barr. Creasycommon smartphone could impose a TCPA violation.v. Charter Commcns, Inc., No. 20-1199. The districtThen, in February, the Seventh Circuitin an opinion courts holding meant that the court lacked subjectauthored by new Supreme Court Justice Amy Coney matter jurisdiction in all of the plaintiffs alleged TCPABarrettfollowed the Eleventh Circuits reasoning violations that occurred before the date of the decisionwith its decision in Ali Gadelhak v. AT&T Services, Inc., in Barr, because federal courts lack authority toNo. 19-1738. There, the Seventh Circuit held that the most enforce violations of unconstitutional laws. Accordingly,reasonable interpretation of the phrase using a random the court granted the defendants motion to dismissor sequential number generator modifies both store with respect to those TCPA violations alleged to haveand produce, such that a device must be capable of occurred prior to July 6, 2020. While other courts haveperforming at least one of those functions using a random since followed Creasy (i.e., Lindenbaum v. Realgy,or sequential number generator to qualify as an ATDS. No.19-2862; Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., No. 20-0038), it remains to be seen if itsHowever, not all circuit courts adopted the plain text rationale will take hold. At least two district courtsdefinition of what constitutes an ATDS. In April 2020 the haveexpressly rejected Creasys reasoning. Second Circuit concluded that there are two different See Shen v.Tricolor California Auto Group, LLC, ways that a device can qualify as an ATDS. Duran v.No. 20-7419; Stoutt v. Travis Credit Union, No. 20-1280. La Boom Disco, Inc., No. 19-0600. A device qualifies as an ATDS first if it can produce numbers using a random Circuit Split Widens on ATDS Definition or sequential number generator, or second, if it can 2020 started with support mounting for a more limitedstore and dial numbers, such as dialing a number from construction of the TCPAs ATDS definition. In January,a prepopulated list. In July, the Sixth Circuit similarly the Eleventh Circuit joined the Third Circuit in issuing concluded that an ATDS includes equipment that can an opinion that significantly narrowed the meaning of anautomatically dial phone numbers stored in a list, rather ATDS. Glasser v. Hilton Grand Vacations Co., LLC, No. 18- than just phone numbers that the equipment randomly 14499. In addressing a pair of consolidated appeals, theor sequentially generates. Allan v. Pa. Higher Educ. three-judge panel held that the phone systems at issueAssistance Agency, No. 19-2043.did not meet the statutory definition of an ATDS because the systems did not randomly or sequentially generateEleventh Circuit Joins Second Circuit in Prohibiting numbers. Utilizing a grammar-focused and commonUnilateral Revocation of Consent Provided in sense approach in its reading of the TCPAs statutoryBargained-for Exchangelanguage, the panel concluded that the clause usingIn May, the Eleventh Circuit ruled that the TCPA does a random or sequential number generator modifiesnot allow a consumer to unilaterally revoke consent to both subsequent verbsto store and [to] produce.receive automated calls when such consent is given The panel thus concluded that random or sequentialas part of a bargained-for exchange. Medley v. DISH number generation was a requisite component of anyNetwork, LLC, No. 18-13841. In Medley, the Eleventh ATDS. The panel further reasoned that, in the age ofCircuit noted that there was no dispute that the plaintiff smartphones, nearly all phones have the capacity tohad expressly consented to be contacted on her cell automatically dial telephone numbers in a stored list.phone in her contract with the defendant to receive Given this, the practical result of reading the statute totelevision service, and that she unilaterally attempted 25'