Sixth circuit breaths a smidge of life into ATDS TCPA claims
- Peter Schneider
- Jul 3
- 4 min read
The telephone consumer protection act prohibits using automatic telephone dialing systems - equipment that can to store or produce telephone numbers to be called, using a random or sequential number generator, then dial them - without consent.
But the brute force random dialers or sequential dialers either kinda died, or moved to India. Generally USA based dialers have moved to calling fake leads. TCPA plaintiffs tried growing the law with technology, arguing that the intent of ATDS restrictions were computerized equipment capable of dialing thousands or of numbers simultaneously, even if the numbers they dialed were random or sequential, but were being pulled from a database. But the Supreme Court disagreed in Facebook, Inc. v. Duguid, 592 U.S. 395, 404 (2021). holding that ATDS claims really did have to prove “the equipment in question must use a random or sequential number generator” to either produce or store the telephone numbers.
If that wasn't enough, the ninth circuit finished off the smoking remains of ATDS claims in Borden v. Efinancial, LLC, 2022 WL 16955661 (9th Cir. Nov. 16, 2022) to say that only systems that produce phone numbers using a random or sequential number generator could be an ATDS. Systems that only store random or sequential numbers are not.
I don't think it changes the fact that ATDS claims are pretty dead, but the sixth circuit in Fluker v Ally Financial Inc (6th Cir. July 2, 2025) at least went with the USSC's interpretation of an ATDS.
The statutory term “automatic telephone dialing system” refers to a machine that has the ability “to store or produce telephone numbers to be called, using a random or sequential number generator,” and can dial these generated numbers . . . equipment that merely stores and dials numbers from a pre-set list falls outside the statute’s scope because it doesn’t use a random or sequential number generator
Most telemarketers where you can get your hands on the details of how they initiate calls are going to be dialing a pre-set list [of fake leads] instead of randomly dialing or sequentially dealing an entire area code. Maybe people believe telemarketers dial the numbers on the national do-not-call list, but even that isn't random or sequential.
The complaint also alleges that the purpose of Ally Financial’s call was “to recover an alleged debt connected to a car loan.” The district court concluded that this allegation was “tantamount to an acknowledgement that the bank’s phone calls targeted [Fluker]specifically.” Fluker, 2023 WL 8881154. Such an acknowledgement would doom Fluker’s TCPA claim because the key characteristic of an automatic telephone dialing system is that it uses a random number generator to create or store random telephone numbers to be called. Facebook, Inc. v. Duguid, 592 U.S. 395, 404 (2021). Thus, an allegation that Fluker was specifically targeted for an alleged debt would support a contrary inference that an automatic telephone dialing system was not used because a random number generator is, by design, incompatible with targeting a specific person based on an alleged debt. See id (rejecting a broader definition of automatic telephone dialing system as any device that could dial numbers without human intervention). But the complaint does not allege that Fluker had a car loan and that Ally Financial sought to recover Fluker’s debt. It states only that the company sought to “recover an alleged debt connected to a car loan.” Read in the light most favorable to Fluker, one could understand these indefinite articles as saying that Ally Financial was randomly calling numerous individuals about a fictitious debt and that its automatic telephone dialing system had randomly generated Fluker’s cell phone number over eight-hundred times. Is this likely? Probably not. But still this allegation—by itself—doesn’t make Fluker’s TCPA claim so inconsistent as to be facially implausible. And yet we agree with the district court that Fluker’s complaint on the whole fails to state a plausible claim to relief
The true number blasters are hiding in places like India or Pakistan and you'll never get discovery on the nature of their calling equipment. So I think ATDS claims continue to be dead even in the 6th circuit because any showing of targeting will defeat an ATDS claim and most calls will point back to a fake lead, although some plaintiffs may continue to bring them but not really expecting to win on them at trial.
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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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