United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1961
___________________________
Colby L. Beal
Plaintiff - Appellant
v.
Outfield Brew House, LLC, doing business as Budweiser Brew House
Defendant - Appellee
___________________________
No. 20-3581
___________________________
Zachary Smith, individually and on behalf of all others similarly situated;
Brian Kagarice
Plaintiffs - Appellants
v.
Truman Road Development, LLC, doing business as No Other Pub,
formerly known as Kansas City Sporting and Social Club, LLC;
The Cordish Companies, Inc.; Entertainment Consulting International, LLC
Defendants - Appellees
United States of America
Intervenor - Appellee
____________
Appeal from United States District Court
for the Western District of Missouri
____________
Submitted: November 17, 2021
Filed: March 24, 2022
____________
Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
____________
GRASZ, Circuit Judge.
This is a consolidated appeal with a single issue: whether an automated
marketing system that sends promotional text messages to phone numbers randomly
selected from a database of customers’ information is an automated telephone
dialing system (an “Autodialer”) under the Telephone Consumer Protection Act (the
“TCPA”). The district court1 held it was not. We agree.
I. Background
Appellees Outfield Brew House, LLC and Truman Road Development, LLC
operate separate bar establishments (the “Establishments”). The Establishments use
a marketing software called “Txt Live,” which allows them to send text messages to
former and potential customers. Appellants are persons who received promotional
text messages from one of the Establishments through Txt Live. Appellants argue
these messages violated the TCPA because they were sent using an Autodialer
without Appellants’ consent. The sole dispute in this appeal is whether Txt Live
falls within the TCPA’s definition of an Autodialer.
1
The Honorable Douglas Harpool, United States District Judge for the
Western District of Missouri, and the Honorable Nanette K. Laughrey, United States
District Judge for the Western District of Missouri.
-2-
Understanding the function of the Txt Live software is central to resolving
this issue. Txt Live is used to maintain a database that stores the contact information
of the Establishments’ former and potential customers. The Establishments’
employees manually enter the contact information, including phone numbers, into
the Txt Live database. Txt Live is not capable of randomly or sequentially
generating phone numbers.
To send a mass text message through Txt Live, employees first narrow the list
of recipients using filters. Txt Live’s filters can limit text messages to a certain target
audience based on a variety of demographic factors. Next, the employees select the
number of potential customers to whom the text message will be sent. The
employees then draft or select the content of the message and hit “send.”
When the employees hit “send,” Txt Live performs a few tasks. First, Txt
Live applies the chosen filters. Txt Live then shuffles the target contacts using a
numerically-based randomizer. If the number of people who meet the filtered
criteria exceed the number of people to whom the message will be sent, Txt Live
selects the recipients at the top of the randomized list first. Appellants compare the
system to shuffling a deck of cards and then taking cards from the top of the shuffled
deck. The manually entered phone numbers are shuffled, and Txt Live selects the
recipients from the top of the shuffled list. Txt Live then sends the message to the
selected phone numbers.
Appellants received promotional text messages from one of the
Establishments through this process and brought suit under 47 U.S.C. § 227, which
makes it unlawful “to make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party) using any [Autodialer]
. . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C.
§ 227(b)(1)(A)(iii). In each case, the district court granted summary judgment in
favor of the Establishment, holding Txt Live did not meet the statutory definition of
an Autodialer.
-3-
II. Analysis
We review the district court’s summary judgment ruling de novo. See
LaCurtis v. Express Med. Transporters, Inc., 856 F.3d 571, 576 (8th Cir. 2017). The
parties agree that this appeal comes down to whether Txt Live falls within the
definition of an Autodialer. See 47 U.S.C. § 227(a)(1). We agree with the district
court that it does not, and therefore, the Establishments are entitled to summary
judgment.
The TCPA defines an Autodialer as:
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.
Id. The parties dispute the meaning of the term “produce” as used in § 227(a)(1)(A),
and whether it includes Txt Live’s random selection of phone numbers from an
existing list of contacts. We conclude it does not.
When interpreting a statute, we “begin by analyzing the statutory language,
‘assum[ing] that the ordinary meaning of that language accurately expresses the
legislative purpose.’” United States v. I.L., 614 F.3d 817, 820 (8th Cir. 2010)
(alteration in original) (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
242, 251 (2010)). “Statutory construction ‘is a holistic endeavor,’ and, at a
minimum, must account for a statute’s full text, language as well as punctuation,
structure, and subject matter.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am.,
Inc., 508 U.S. 439, 455 (1993) (internal citation omitted) (quoting United Savings
Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)).
While a phrase may be susceptible to certain meanings when viewed in isolation, its
plain meaning “is often clarified by the remainder of the statutory scheme[.]”
Timbers of Inwood, 484 U.S. at 371.
-4-
So to accurately determine the meaning of “produce” in § 227(a)(1), we must
consider its context, especially its subject—that is, the thing doing the producing.
Under the language of § 227(a)(1), a “random or sequential number generator” does
the producing. While subjects in other contexts may produce by selecting, a
generator produces by generating. An electrical generator produces by generating
electricity. A password generator produces by generating a password. And a
random number generator produces by generating a random number. Because Txt
Live does not generate phone numbers to be called, it does not “produce telephone
numbers to be called” for purposes of § 227(a)(1) of the TCPA.
Appellants point to dictionary definitions and common uses of the term
“produce” to suggest it includes “select” or “bring forth.” But this is the kind of
isolated and contextless approach rejected by precedent. See U.S. Nat’l Bank of Or.,
508 U.S. at 455. While dictionary definitions and common uses of a word can be
helpful, they will derail accurate interpretation if we improperly determine that the
meaning of a term used in a statute includes any existing definition or use of that
term. Just because “produce” can mean “select” in other contexts does not mean it
includes “select” here. And just as an electrical generator does not produce by
selecting electricity, a random number generator does not produce by selecting a
random number.
Appellants argue our interpretation writes “generated” into the statute, citing
Gadelhak v. AT&T Servs., 950 F.3d 458, 465–66 (7th Cir. 2020) (rejecting an
interpretation of § 227(a)(1) that effectively inserts the term “generated” into the
statute). However, our interpretation does no such thing. We simply interpret the
word “produce.” And we conclude “produce,” because of the language used in
§ 227(a)(1), does not mean “select.”
Our interpretation is strongly bolstered by the Supreme Court’s interpretation
of § 227(a)(1) in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), which was
decided after this district court’s summary judgment ruling. While Facebook
addressed a different issue than is presented here, we find the principles announced
-5-
by the Court support our interpretation. In Facebook, a social media platform
(“Facebook”) maintained a security feature that sent users “login notification” text
messages when an unknown device attempted to log in to a user’s account.
Facebook, 141 S. Ct. at 1168. Putative class representative Noah Duguid argued
Facebook’s system was an Autodialer, even though it did not make use of a random
or sequential number generator, because it stored phone numbers and sent automated
text messages to the stored numbers. Id. at 1169.
The issue in Facebook was whether the clause “using a random or sequential
number generator” under § 227(a)(1) only modifies the word “produce” or whether
it modifies both “store” and “produce.”2 Id. The Court held the clause modifies
both “store” and “produce,” meaning the definition of Autodialer “excludes
equipment that does not ‘us[e] a random or sequential number generator.’” Id. at
1169–71 (quoting § 227(a)(1)(A)). In reaching this conclusion, the Court
emphasized that § 227 “target[s] a unique type of telemarketing equipment that risks
dialing emergency lines randomly or tying up all the sequentially numbered lines at
a single entity.” Id. The Court reasoned, “Expanding the definition of an
[A]utodialer to encompass any equipment that merely stores and dials telephone
numbers would take a chainsaw to these nuanced problems when Congress meant to
use a scalpel.” Id.
Txt Live is exactly the kind of equipment Facebook excluded from
§ 227(a)(1)—“equipment that merely stores and dials telephone numbers.” Id. And
while Appellants argue Txt Live differs from the system in Facebook because it uses
a numerically-based randomizer to shuffle and select phone numbers, we find this
2
Other circuits had addressed this issue, and the Third, Seventh, and Eleventh
Circuits agreed with Facebook, while the Ninth (the circuit below in Facebook),
Second, and Sixth Circuits agreed with the approach argued by Duguid. Compare
Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1043 (9th Cir. 2018), and Duran
v. La Boom Disco, Inc., 955 F.3d 279, 284 (2d Cir. 2020), and Allan v. Pa. Higher
Educ. Assistance Agency, 968 F.3d 567, 571, 580 (6th Cir. 2020), with Glasser v.
Hilton Grand Vacations Co., 948 F.3d 1301, 1306 (11th Cir. 2020), and Gadelhak,
950 F.3d at 468, and Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018).
-6-
unpersuasive. Facebook was not concerned with how an automatic texting system
may organize and select phone numbers. The Court was instead concerned with
Congress’s limiting the definition of Autodialer to unique equipment capable of
randomly dialing emergency lines and tying up sequentially numbered business
lines. See id. And this concern reaches a vanishing point with a system that is only
designed to text potential customers who have voluntarily given a business their
phone numbers.
Appellants argue our interpretation ignores footnote 7 in Facebook. Footnote
7 responded to the argument that the Court’s interpretation renders the word “store”
superfluous because it is difficult to imagine how a random or sequential number
generator could store a phone number without first producing it. See id. at 1172 n.7.
The Court responded:
“It is no superfluity,” however, for Congress to include both functions
in the [A]utodialer definition so as to clarify the domain of prohibited
devices. For instance, an [A]utodialer might use a random number
generator to determine the order in which to pick phone numbers from
a preproduced list. It would then store those numbers to be dialed at a
later time. In any event, even if the storing and producing functions
often merge, Congress may have “employed a belt and suspenders
approach” in writing the statute.
Id. (citations omitted). Like other courts, we do not believe the Court’s footnote
indicates it believed systems that randomly select from non-random phone numbers
are Autodialers. See, e.g., Tehrani v. Joie de Vivre Hosp., LLC, No. 19-cv-08168,
2021 WL 3886043, at *6–7 (N.D. Cal. Aug. 31, 2021); Timms v. USAA Fed. Sav.
Bank, No. 3:18-CV-01495, 2021 WL 2354931, at *6–7 (D.S.C. June 9, 2021). The
hypothetical system considered by the Court was a system in which numbers were
sequentially generated before being stored and later randomly selected. See Brief of
Amici Curiae Pro. Ass’n for Customer Engagement at 17–19, Facebook, 141 S. Ct.
1163. Txt Live does not sequentially generate phone numbers.
-7-
Further, the Court struggled with the difficult question of how a number
generator could store a phone number without first producing it. The Court
explained Congress may have used “store” to “clarify the domain of prohibited
devices” rather than specify a distinct category of systems which store but do not
produce phone numbers. Facebook, 141 S. Ct. at 1172 n.7. The Court was not
suggesting, as Appellants argue, that the term “produce” includes randomly selecting
from a database of non-randomly collected phone numbers. This would conflict
with the Court’s overall conclusion that a system which merely stores and dials
phone numbers is not an Autodialer. 3 And at its bottom, Txt Live is a system that
merely stores and dials phone numbers.
III. Conclusion
For the reasons set forth herein, we affirm.
COLLOTON, Circuit Judge, concurring in part.
I concur in the opinion of the court, except for footnote three regarding denials
of certiorari and summary reconsideration orders. See Missouri v. Jenkins, 515 U.S.
3
While “a denial of certiorari normally carries no implication or inference,”
United States v. Kras, 409 U.S. 434, 443 (1973), it does not escape our notice that
in the wake of Facebook, the Court granted certiorari and remanded cases that held
systems that dialed from a group of pre-collected phone numbers were Autodialers,
see La Boom Disco v. Duran, 141 S. Ct. 2509 (2021); Pa. Higher Educ. Assistance
Agency v. Allan, 141 S. Ct. 2509 (2021), indicating “a ‘reasonable probability’ that
the [respective] Court[s] of Appeals would reject a legal premise on which [they]
relied[.]” Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001) (quoting Lawrence v. Chater,
516 U.S. 163, 167 (1996)). On the same day, the Court denied certiorari to cases
that held systems that dialed from a group of pre-collected numbers were not
Autodialers. See Gadelhak v. AT&T Servs., Inc., 141 S. Ct. 2552 (2021); Glasser v.
Hilton Grand Vacations Co., 141 S. Ct. 2510 (2021).
-8-
70, 85 (1995); Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001); South Dakota v. U.S.
Dep’t of Interior, 423 F.3d 790, 796 n.5 (8th Cir. 2005).
______________________________
-9-