ALLEN, MITCHELL & ALLEN PLLC
47 U.S.C. §227. Restrictions on use of telephone equipment
(a) Definitions As used in this section—
(1) The term “automatic telephone dialing system” means 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.
47 C.F.R. §64.1200
(f) As used in this section:
(2) The terms automatic telephone dialing system and autodialer mean 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.
“the focus must be on whether the equipment has the capacity … ‘to store or produce telephone numbers to be called, using a random or sequential number generator.’”
The Court held that a system must have the present capacity, at the time the calls were made, to operate as an autodialer for it to be an ATDS. According to the Court, equipment is not an ATDS if "substantial modification or alteration" is required for the system to have such capacity.
"This Court therefore finds the clear mandate from the Ninth Circuit requires a defendant challenging a plaintiff’s ATDS showing on a motion for summary judgment to demonstrate that no genuine issue of material fact exist as to whether the equipment at issue has the requisite current and future capacity to act as an ATDS in order to warrant summary judgment”