`
`PRECEDENTIAL
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`____________
`
`No. 20-2371
`____________
`
`ELIZABETH PANZARELLA; JOSHUA PANZARELLA,
`Individually and on behalf of all others similarly situated,
` Appellants
`
`v.
`
`NAVIENT SOLUTIONS, INC.
`____________
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`(Civil No. 2-18-cv-03735)
`District Judge: Honorable Petrese B. Tucker
`____________
`
`Argued February 11, 2022
`____________
`
`Before: GREENAWAY, JR., SCIRICA, and RENDELL,
`Circuit Judges.
`
`(Filed: June 14, 2022)
`
`
`
`
`
`
`
`
`
`
`
`
`
`James A. Francis
`David A. Searles
`Francis Mailman Soumilas
`1600 Market Street
`Suite 2510
`Philadelphia, PA 19103
`
`David P. Mitchell [ARGUED]
`Maney & Gordon
`101 East Kennedy Boulevard
`Suite 1700
`Tampa, FL 33602
`
`Robert P. Cocco
`Robert P. Cocco, P.C.
`1500 Walnut Street
`Suite 900
`Philadelphia, PA 19102
`
`
`
`Alan J. Butler
`Megan Iorio
`Christopher Frascella
`1518 New Hampshire Avenue, N.W.
`Washington, DC 20036
`
`
`
`Lisa M. Simonetti [ARGUED]
`Greenberg Traurig
`
`Counsel for Appellants
`
`Counsel for Amicus/Appellants
`
`
`
`2
`
`
`
`
`
`1840 Century Park East
`Suite 1900
`Los Angeles, CA 90067
`
`Lindsay N. Aherne
`Greenberg Traurig
`1144 15th St.
`Suite 3300
`Denver, CO 80202
`
`Joel M. Eads
`Greenberg Traurig
`1717 Arch Street Suite 400
`Philadelphia, PA 19103
`
`
`
`
`Counsel for Appellee
`____________
`
`
`
`OPINION OF THE COURT
`
`___________
`
`
`
`Rendell, Circuit Judge.
`
`Elizabeth and Joshua Panzarella (“the Panzarellas”)
`sued Navient Solutions, LLC (“Navient”), claiming that,
`among other things, Navient violated the Telephone Consumer
`Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The
`Panzarellas assert that Navient called their cellphones without
`
`
`
`3
`
`
`
`
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`their prior express consent using an automatic telephone
`dialing
`system
`(“ATDS”)
`in violation of
`section
`227(b)(1)(A)(iii) of the TCPA. The District Court granted
`summary judgment for Navient. It concluded that Navient’s
`dialing technology did not qualify as an ATDS under section
`227(a)(1) of the TCPA because it viewed a particular
`component of Navient’s dialing technology as separate from
`its dialing system. As a result, it erred by failing to consider
`whether Navient’s dialing “equipment” as a whole qualified as
`an ATDS. Id. Even though we do not decide whether
`Navient’s dialing equipment qualified as an ATDS, we find
`that Navient did not use an ATDS in violation of the TCPA
`when it called the Panzarellas. Thus, we will affirm the District
`Court’s order on this alternative ground.
`
`I.
`
`loans of Matthew
`the student
`Navient serviced
`Panzarella, Elizabeth’s son and Joshua’s brother. Matthew
`listed both his mother and brother as references on student loan
`applications and promissory notes and, in doing so, provided
`their cell phone numbers to Navient. Eventually, he became
`delinquent on his loans and failed to respond to Navient’s
`attempts to communicate with him. In response, Navient
`contacted the Panzarellas. Call logs show that, over five
`months, Navient called the phone number alleged to belong to
`Elizabeth four times (three of which were unanswered, and one
`of which may have been answered) and the number alleged to
`belong to Joshua fifteen times (all unanswered).
`
`During the relevant period, Navient used telephone
`dialing software developed by Interactive Intelligence Group,
`
`
`
`4
`
`
`
`
`
`Inc (“ININ”),1 the “Interaction Dialer.” This software allows
`a user to “conduct[] campaigns” during which “calls are placed
`to contacts based upon information read from a contact list.”
`App. 185. For each campaign, the user may opt to use one of
`several dialing methods, which employ varying levels of
`automation. For example, in “Preview” mode, call center
`agents initiate calls, while, in modes such as “Predictive” and
`“Power,” the Interaction Dialer automatically dials telephone
`numbers.2
`
`The Interaction Dialer cannot conduct campaigns on its
`own. Instead, it “is deployed across servers and workstations
`that collectively make up the system.” App. 200. Three
`servers are required: the Outbound Dialer Server, the Central
`Campaign Server, and a database server. During a campaign
`these three servers work together to make and process
`outbound calls. The Outbound Dialer Server makes the
`outbound calls, while the Central Campaign Server acts like an
`intermediary gathering data from and passing these data among
`the system’s servers. The database server, which “often runs
`on dedicated hardware” yet “can reside on the [Central
`Campaign Server],” contains “a set of database tables that are
`created and managed automatically by Interaction Dialer” and
`the customer-created “contact list.” App. 200, 203. The
`Interaction Dialer relies on “external data sources for contacts
`[l]ists and campaign tables,” and these tables “must be
`
`1 ININ now does business under
`Telecommunications Laboratories, Inc.
`
`the name Genesys
`
`2 During the relevant period, Navient used two customized
`versions of the Interaction Dialer, one with and one without the
`“Agentless,” “Power,” and “Predictive” dialing modes. To call
`the Panzarellas, it used the latter version.
`
`
`
`5
`
`
`
`
`
`managed by a database management system,” either Oracle
`RDBMS or Microsoft SQL Server. App. 205. Users may
`employ the Interaction Dialer’s “Contact Import Wizard” to
`import contact data from their own sources or “create [their]
`contact tables manually.” App. 205, 209.
`
`As is relevant here, in its configuration of the Interaction
`Dialer (the “ININ System”), Navient used a database server
`managed by Microsoft SQL Server (the “SQL Server”). The
`server performs two key functions for the ININ System. First,
`it stores a list of numbers associated with student loan accounts
`that have specific attributes (e.g., type of loan, stage of
`delinquency). Although the SQL Server can generate 10-digit
`random and sequential numbers in a ContactList table, all its
`stored telephone numbers “are pulled from Artiva,” Navient’s
`separate database of account information. App. 123 ¶ 19.
`Second, the SQL Server plays a role in outbound calling
`campaigns, relaying the stored telephone numbers to the ININ
`System’s other servers to enable the System to dial them.
`
`This appeal concerns whether Navient used the ININ
`System in violation of the TCPA. The TCPA prohibits
`individuals from, among other things,
`
`mak[ing] any call (other than a call
`made for emergency purposes or
`made with
`the prior express
`consent of the called party) using
`any automatic telephone dialing
`system . . .—
`
`emergency
`any
`(i) to
`telephone line . . . ;
`
`
`
`6
`
`
`
`
`
`(ii) to the telephone line of
`any guest room or patient
`room of a hospital health
`care facility, elderly home,
`or similar establishment; or
`
`telephone
`any
`(iii) to
`number assigned
`to a
`paging
`service, cellular
`telephone service, or any
`service for which the called
`party is charged for the call,
`unless such call is made
`solely to collect a debt
`owed to the United States[.]
`
`§ 227(b)(1)(A). Under section 227(a)(1) of the TCPA, an
`ATDS is
`
`equipment which
`capacity—
`
`has
`
`the
`
`(A) to store or produce
`telephone numbers to be
`called, using a random or
`sequential
`number
`generator; and
`
`(B) to dial such numbers.
`
`The Panzarellas filed a putative class action complaint
`against Navient in the United States District Court for the
`Eastern District of Pennsylvania, alleging that Navient used an
`ATDS to call their and others’ cellphones without their prior
`
`
`
`7
`
`
`
`
`
`express consent in violation of section 227(b)(1)(A)(iii) of the
`TCPA.3 They sought injunctive relief and statutory damages
`under section 227(b)(3) of the TCPA as well as an award of
`attorneys’ fees and costs on an equitable basis.4
`
`Navient sought summary judgment, arguing, among
`other things, that the Panzarellas’ “TCPA claims fail[ed]”
`because Navient did not call them “us[ing] an ATDS[.]”
`App. 62-63. It claimed it could not have done so as its ININ
`System did not qualify as an ATDS under section 227(a)(1) of
`the TCPA. It contended that, because this system lacked the
`capacity to generate random or sequential telephone numbers
`and then dial those numbers, it could not be an ATDS.5
`
`The District Court granted summary judgment for
`Navient holding that Navient did not use an ATDS to place the
`calls at issue. It determined that Navient’s ININ System lacked
`
`
`3 The Panzarellas defined the putative class as “[a]ll cellular
`telephone subscribers
`in
`the United States who from
`September 2012 to the present received an autodialed call from
`Navient on their cellular telephone without their prior express
`consent regarding a debt they did not owe.” App. 31.
`
`4 The Panzarellas also alleged that Navient violated the Fair
`Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the
`“FDCPA”), which is not at issue on appeal. The District Court
`granted Navient’s motion for summary judgment on these
`claims, finding that the Panzarellas had abandoned them.
`
`5 Navient also argued that, because the calls at issue were
`placed with human intervention, these calls were not made by
`an ATDS in violation of the TCPA. The District Court did not
`address this argument, and Navient has not raised it on appeal.
`
`
`
`8
`
`
`
`
`
`the necessary present capacity to store or produce telephone
`numbers using a random or sequential number generator. It
`reasoned, relying largely on the characterization of such a
`database server contained in the Interaction Dialer’s manual,
`that the SQL Server was distinct from the ININ dialing system.
`Consequently, the District Court found that the Panzarellas had
`adduced “no evidence to suggest that the ININ dialing system
`on its own is an ATDS” and granted Navient’s motion for
`summary judgment on the Panzarellas’ TCPA claims. App. 10
`(emphasis added).
`
`The Panzarellas timely appealed their TCPA claims and
`seek reversal only of the District Court’s grant of summary
`judgment for Navient on these claims.
`
`II.6
`
`Summary judgment is appropriate where “there is no genuine
`dispute as to any material fact and the movant is entitled to
`judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
`Corp. v. Catrett, 477 U.S. 317, 322 (1985). We review the
`order granting summary judgment, including the factual and
`legal questions, de novo. Ezaki Glico Kabushiki Kaisha v.
`Lotte Int’l Am. Corp., 986 F.3d 250, 255 (3d Cir. 2021). We
`“view the underlying facts and all reasonable inferences
`therefrom in the light most favorable to the party opposing the
`motion.” Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394,
`402 (3d Cir. 2016) (citation omitted). “We may affirm on any
`basis supported by the record, even if it departs from the
`
`
`6 The District Court had jurisdiction over the underlying
`putative class action under 28 U.S.C. § 1331. We exercise
`jurisdiction under 28 U.S.C. § 1291.
`
`
`
`9
`
`
`
`
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`District Court’s rationale.” TD Bank N.A. v. Hill, 928 F.3d
`259, 270 (3d Cir. 2019).
`
`III.
`
`A.
`
`The Panzarellas asserted that Navient violated section
`227(b)(1)(A)(iii) by using an ATDS to call them without their
`prior express consent. As noted above, the District Court
`disagreed, concluding that Navient’s dialing system, the ININ
`System, was not an ATDS as defined by section 227(a)(1). The
`District Court’s conclusion, however,
`rested on
`its
`misinterpretation of the TCPA’s ATDS definition, in particular
`the meaning of “equipment.”
`
`The TCPA requires that we consider the “equipment”
`that the defendant employs to conduct calling campaigns.
`§ 227(a)(1). To determine how widely this term sweeps, “we
`look first to [the statute’s] language, giving the words used
`their ordinary meaning.” Artis v. Dist. of Columbia, 138 S. Ct.
`594, 603 (2018) (citation omitted). For an undefined term such
`as “equipment,” we seek to determine its plain meaning at the
`time of the TCPA’s enactment. Bostock v. Clayton Cnty., 140
`S. Ct. 1731, 1738 (2020). At that time, equipment referred to
`the tools used to achieve a particular purpose or objective. See,
`e.g., Equipment, Merriam-Webster’s Dictionary of Law (1996)
`(defining equipment as “the implements used in an operation
`or activity”); Equipment, Black’s Law Dictionary (6th ed.
`1990) (“Furnishings or outfit for the required purposes.
`Whatever is needed in equipping; the articles comprised in an
`outfit; equippage.”); see also Equipment, Black’s Law
`Dictionary (11th ed. 2019) (“The articles or implements used
`for a specific purpose or activity (esp. a business operation).”).
`
`
`
`10
`
`
`
`
`
`Accordingly, as ordinarily understood, equipment could
`constitute several discrete objects that, together, served a single
`purpose.
`
`As “[s]tatutory language cannot be construed in a
`vacuum,” we turn next to equipment’s context. Weyerhaeuser
`Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 367 (2018)
`(alteration in original) (citation omitted). This context shows
`that Congress drafted the TCPA to regulate combinations of
`devices that, when used together, functioned as autodialers.
`Critically, Congress chose to regulate the use of “automatic
`telephone dialing system[s].”
` § 227(b)(1)(A) (emphasis
`added). By focusing on systems, it signaled that the TCPA
`would reach combinations of devices that operate together.
`See System, Black’s Law Dictionary (6th ed. 1990) (“Orderly
`combination or arrangement, as of particulars, parts, or
`elements into a whole; especially such combinations according
`to some rational principle.”). At the time, both Congress and
`the
`telemarketing
`industry understood
`this choice’s
`consequences. See H.R. Rep. No. 101-633, at 6 (1990)
`(discussing industry concerns about the scope of the ATDS
`definition). Congress considered but declined to adopt
`language that would have limited the ATDS definition to
`certain types of dialing equipment. Compare § 227(a)(1)
`(defining ATDSs in terms of “equipment”), with H.R. 628
`(1989) (defining autodialers in terms of “telephone terminal
`equipment”). See Sandoval v. Reno, 166 F.3d 225, 241 (3d Cir.
`1999) (reasoning that Congress’s decision to exclude proposed
`language from an earlier bill in the final bill confirmed the
`court’s interpretation of the statute). Given the statute’s
`remedial purpose, we have no difficulty concluding that
`Congress envisioned a broad understanding of “equipment.”
`See Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir.
`
`
`
`11
`
`
`
`
`
`2013) (relying on the TCPA’s status as a “remedial statute” to
`confirm an interpretation of the statutory text).
`
`The FCC’s interpretations of equipment bolster our
`construction.7 See Daubert v. NRA Grp., LLC, 861 F.3d 382,
`389-90 (3d Cir. 2017) (considering FCC rulings as part of its
`interpretation of the TCPA). Since 2003, the FCC has
`interpreted the TCPA to regulate certain combinations of
`software and hardware. Rules & Regulations Implementing the
`Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14,014, 14,091-
`93 (2003) (determining predicative dialers qualified as ATDSs
`because “[t]he hardware, when paired with certain software,
`has the capacity to store or produce numbers and dial those
`numbers” (emphasis added)). Recently, in 2015, it considered
`whether a dialing system composed of devices owned and
`operated by separate entities yet used together qualified as an
`ATDS. Rules & Regulations Implementing the Tel. Consumer
`Prot. Act of 1991, 30 FCC Rcd. 7961, 7977-78 (2015). In a
`portion of the ruling left intact by the D.C. Circuit, see ACA
`
`
`7 In PDR Network, LLC v. Carlton & Harris Chiropractic, the
`Supreme Court suggested that the FCC’s interpretive rulings
`may not bind courts when they construe the TCPA. 139 S. Ct.
`2051, 2055-56 (2019) (holding that it could not determine
`whether, under the Hobbs Act, a 2006 FCC order binds courts
`without resolving two preliminary questions). For this reason,
`we, as our sister circuits have done, will treat such rulings as
`persuasive authority. Gorss Motels, Inc. v. Lands’ End, Inc.,
`997 F.3d 470, 477 n.4 (2d Cir. 2021); Golan v. FreeEats.com,
`Inc., 930 F.3d 950, 960 n.8 (8th Cir. 2019) (“We agree with the
`FCC not because we believe we are bound to do so but because
`we find this portion of their interpretation of the statute to be
`persuasive.”).
`
`
`
`12
`
`
`
`
`
`Int’l v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018), the FCC
`determined that such “a combination of equipment” could
`constitute an ATDS as long as this “voluntary combination”
`requirements, Rules &
`meets
`the ATDS definition’s
`Regulations Implementing the Tel. Consumer Prot. Act of
`1991, 30 FCC Rcd. at 7978. Emphasizing the statute’s use of
`“system,” it reasoned that the TCPA “contemplate[s]” that
`“various pieces of different equipment and software can be
`combined to form an [ATDS].” Id.
`
`Equipment’s ordinary meaning, its context, and the
`FCC’s interpretation of the ATDS definition, then, all point to
`the same construction: an ATDS may include several devices
`that when combined have the capacity to store or produce
`telephone numbers using a random or sequential number
`generator and to dial those numbers.
`
`Applying this construction here, we find that the District
`Court erred in holding that Navient’s dialing system was not
`an ATDS because it viewed the SQL Server’s capacities as
`distinct from the ININ System’s. Navient relied on the SQL
`Server alongside the ININ System’s other components to
`conduct dialing campaigns. This server not only stored the
`telephone numbers that Navient contacted during campaigns,
`but it also communicated with the ININ System’s other
`servers, so the system could call them. Indeed, the Interaction
`Dialer’s manual confirms that this dialer cannot conduct these
`campaigns without a database server, like the SQL Server.
`Navient points out that Microsoft rather than ININ developed
`the SQL Server, and this server resides on its own dedicated
`hardware. But this does not matter. As the TCPA requires us
`to consider whether all the devices employed together to
`conduct dialing campaigns constitute an ATDS, we conclude
`that Navient’s “equipment” includes the SQL Server. Because
`
`
`
`13
`
`
`
`
`
`the District Court determined that Navient’s dialing system
`was not an ATDS only after it excluded the SQL Server from
`this system, we cannot affirm the District Court’s grant of
`summary judgment on these grounds.
`
`B.
`
`Still, Navient insists that we should find that the ININ
`System, including the SQL Server, could not qualify as an
`ATDS under section 227(a)(1). It claims that, in its recent
`decision Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), the
`Supreme Court held that a dialing system “must presently and
`actually use a random and sequential telephone number
`generator” to qualify as an ATDS. Appellee’s Br. 28-29
`(emphasis in original). Navient contends that the record
`contains no evidence that the ININ System actually generated
`random or sequential telephone numbers, and, therefore,
`because it did not use an ATDS, it is still entitled to summary
`judgment.
`
`We disagree. Both Navient and the concurrence seize
`on language in Duguid, claiming that it constitutes a holding
`that an ATDS must actually use a random or sequential number
`generator. But that is not the case. The issue before the Court
`was quite different. In Duguid, the Supreme Court interpreted
`the TCPA’s ATDS definition to resolve a circuit split between
`the Second, Sixth, and Ninth Circuits on one side and our
`Court, the Seventh, and Eleventh Circuits on the other. 141 S.
`Ct at 1168 & n.4. The former group held that the phrase “using
`a random or sequential number generator” modifies “produce”
`but not “store.” Duran v. La Boom Disco, Inc., 955 F.3d 279,
`283-84, 287 (2d Cir. 2020); Allan v. Pa. Higher Educ.
`Assistance Agency, 968 F.3d 567, 579-80 (6th Cir. 2020);
`Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th
`
`
`
`14
`
`
`
`
`
`Cir. 2018). The latter, on the other hand, determined that it
`modifies both “produce” and “store.” Dominguez v. Yahoo,
`Inc., 894 F.3d 116, 119 (3d Cir. 2018); Gadelhak v. AT&T
`Servs., Inc., 950 F.3d 458, 468 (7th Cir. 2020); Glasser v.
`Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th
`Cir. 2020). Relying primarily on its understanding of section
`227(a)(1)’s syntax and its application of the series-qualifier
`canon, the Court adopted the latter group’s construction of the
`TCPA, holding that, “[t]o qualify as an [ATDS,] a device must
`have the capacity either to store a telephone number using a
`random or sequential generator or to produce a telephone
`number using a random or sequential number generator.”
`Duguid, 141 S. Ct. at 1167, 1169-70 (emphasis added).
`
`The opinion’s imprecise use of language ultimately
`provides no support for Navient’s assertion that the Court held
`that, to qualify as an ATDS, the equipment “must not only have
`a present capacity to generate random or sequential numbers
`and then dial them, it must [also] actually use that generator.”
`Appellee’s Br. 19 (emphasis in original). Although the Court
`restated the full ATDS definition—including “capacity”—
`when it summarized its holding, 141 S. Ct. at 1168; id. at 1173
`(“We hold that a necessary feature of an [ATDS] under §
`227(a)(1)(A) is the capacity to use a random or sequential
`number generator to either store or produce phone numbers to
`be called.” (emphasis added)), in other places, it described the
`ATDS definition in terms of the “use” of a random or
`sequential number generator, e.g., id. at 1170 (“In sum,
`Congress’ definition of an autodialer requires that in all cases,
`whether storing or producing numbers to be called, the
`equipment in question must use a random or sequential number
`generator.” (emphasis added)); id. at 1171 (“The statutory
`context confirms that the autodialer definition excludes
`
`
`
`15
`
`
`
`
`
`equipment that does not ‘us[e] a random or sequential number
`generator.’” (emphasis added) (quoting § 227(a)(1)(A)). Yet,
`these inconsistent statements, in their context, say nothing
`about whether an ATDS must use a random or sequential
`number generator or have the capacity to use a random or
`sequential number generator. Indeed, this issue was not even
`before the Court. Id. at 1168 (viewing the issue before it as
`limited to resolving the circuit split regarding whether “using
`a random or sequential number generator” modified “produce”
`but not “store”). Rather, the Court employed this language to
`explain that “using a random or sequential number generator”
`modifies “store” and “produce.”8 That was the issue before it.
`See Borden v. United States, 141 S. Ct. 1817, 1833 n.9 (2021)
`(plurality opinion) (“‘[T]he language of an opinion,’ we have
`stated, ‘is not always to be parsed as though we were dealing
`with the language of a statute.’ And that is most obviously true
`
`
`
`8 The concurrence contends that, through such language, the
`Duguid Court demonstrated that its analysis went beyond
`resolving the question of whether “using a random or
`sequential number generator” modifies both “produce” and
`“store.” In particular, it claims that the Court’s explanation of
`the potential ramifications of a broad ATDS definition proves
`the point. We disagree. The precise question before the Court
`invited consideration of these consequences. The Court
`observed that ordinary smartphones would qualify as ATDSs
`if an ATDS need only be capable of storing and dialing
`telephone numbers, as the Ninth Circuit had held below, id. at
`1168, 1171, so it reasoned that, rather than have the capacity to
`merely store telephone numbers, it must have the capacity to
`store them “using a random or sequential number generator,”
`§ 227(a)(1)(A).
`
`
`
`16
`
`
`
`
`
`when an opinion’s language revises (for easier reading) the
`statute’s own. Better to heed the statutory language proper.”
`(alteration in original) (quoting Reiter v. Sonotone Corp., 442
`U.S. 330, 341 (1979))). Therefore, Duguid does not stand for
`the proposition that a dialing system will constitute an ATDS
`only if it actually generates random or sequential numbers.9
`
`
`9 Even if Duguid could be read to suggest that section 227(a)(1)
`requires an ATDS to actually use a random or sequential
`number generator, we would consider these statements dicta
`that do not bind us. Kirtsaeng v. John Wiley & Sons, Inc., 568
`U.S. 519, 548 (2013); Singh v. Uber Techs. Inc., 939 F.3d 210,
`223 (3d Cir. 2019). Moreover, although “we pay due homage
`to the Supreme Court’s well-considered dicta as pharoi that
`guide our rulings,” these dicta, if we accept Navient’s reading
`of them, do not merit such treatment as they would then
`conflict with the section 227(a)(1)(A)’s plain meaning. IFC
`Interconsult, AG v. Safeguard Int’l Partners, LLC., 438 F.3d
`298, 311 (3d Cir. 2006) (emphasis added) (declining to follow
`a dictum it determined was “hardly a well-considered
`dictum”). Cf. Kirtsaeng, 568 U.S. at 548 (declining to afford
`weight to a dictum from a previous opinion and noting that “we
`are not necessarily bound by dicta should more complete
`argument demonstrate that the dicta [are] not correct”).
`
`The concurrence suggests this reading of Duguid is well
`considered, but
`it makes
`little effort
`to square
`this
`interpretation of section 227(a)(1) with the statutory text or our
`holding in Dominguez. It argues that an actual-use requirement
`does not conflict with section 227(a)(1)’s use of “capacity”
`because it views “‘[c]apacity’ [as] a prerequisite to ‘use.’”
`Concurring Op. I. n.3. Section 227(a)(1)’s text, however,
`cannot bear such a construction. The phrase “using a random
`
`
`
`17
`
`
`
`
`
`Instead, under section 227(a)(1), whether “equipment”
`qualifies as an ATDS turns on that equipment’s “capacity” to
`employ a random or sequential number generator to store or
`produce telephone numbers, not its actual use of a such a
`generator. § 227(a)(1). We have held that, for a dialing system
`to qualify as an ATDS, it need only have the “present capacity
`to function as an autodialer by generating random or sequential
`telephone numbers and dialing those numbers.” Dominguez,
`894 F.3d at 119, 121; see also King v. Time Warner Cable, 894
`F.3d 473, 481 (2d Cir. 2018) (adopting a similar interpretation
`of “capacity”); ACA Int’l, 885 F.3d at 696 (explaining that
`whether a particular function is a “capacity” of that device
`turns on the significance of the modification needed to employ
`that function). Here, there is conflicting evidence in the record
`
`
`or sequential number generator” modifies the phrase “to store
`or produce telephone numbers to be called,” which, in turn,
`modifies “capacity.” “[U]sing a random or sequential number
`generator,” thus, refers to how an ATDS must be capable of
`storing or producing telephone numbers. So, if we were to
`decide whether Navient’s dialing system qualifies as an ATDS,
`section 227(a)(1), as we held in Dominguez, 894 F.3d at 119,
`121, would require us to consider whether the equipment in
`question has the present capacity to employ random- or
`sequential-number generation “to store or produce telephone
`numbers to be called[.]” And, as we note, based on the record
`before us, we cannot answer that question.
`
`Perhaps, the Supreme Court might interpret section 227(a)(1)’s
`use of “capacity” differently when a case provides the occasion
`for it to do so, but, at this moment, that prospect is not enough
`for us to discard Dominguez. See Rehkop v. Berwick
`Healthcare Corp., 95 F.3d 285, 291 (3d Cir. 1996).
`
`
`
`18
`
`
`
`
`
`concerning the “present capacity” of the entire ININ System
`(inclusive of the SQL Server) to employ random- or sequential-
`number generation to store or produce telephone numbers. For
`this reason, we cannot hold that ININ System does or does not
`qualify as an ATDS.10
`
`IV.
`
`While the District Court erred in granting summary
`judgment based on whether the ININ System qualified as an
`ATDS, summary judgment may still have been properly
`granted if we find the record makes clear that, when Navient
`called the Panzarellas, it did not “make [these calls] . . . using
`any [ATDS].” § 227(b)(1)(A) (emphasis added). That is so
`because a violation of section 227(b)(1)(A)(iii) requires proof
`that the calls at issue be made “using” an ATDS. This issue
`turns not on whether Navient’s dialing equipment was an
`ATDS but on whether Navient violated the TCPA when it
`employed this dialing equipment to call the Panzarellas.11
`
`
`
`10 Although the District Court did not address this issue, we
`will not remand the case for it do so because we can resolve
`this appeal on alternative grounds.
`
`11 We may affirm the District Court’s decision on these
`different grounds even though the parties have not focused on
`this issue. “[O]ur adversarial legal system generally adheres to
`the principle of party presentation,” under which parties frame
`the issues before the court. Guerra v. Consol. Rail Corp., 936
`F.3d 124, 132 & n.5 (3d Cir. 2019). Nevertheless, “[w]hen an
`issue or claim is properly before the court, the court is not
`limited to the particular legal theories advanced by the parties,
`but rather retains the independent power to identify and apply
`
`
`
`19
`
`
`
`
`
`“As in any statutory construction case, [w]e start, of
`course, with the statutory text, and proceed from the
`understanding that [u]nless otherwise defined, statutory terms
`are generally interpreted in accordance with their ordinary
`meaning.” Sebelius v. Cloer, 569 U.S. 369, 376 (2013)
`(alterations in original) (internal quotation marks and citation
`omitted). We, then, must consider how an ordinary person
`would understand the phrase “making any call . . . using any
`[ATDS].” § 227(b)(1)(A) (emphasis added); see Watson v.
`United States, 552 U.S. 74, 79 (2007) (interpreting a statute’s
`use of “use” in accordance with its ordinary understanding
`when this term was undefined).
`
`This inquiry gets us only so far for use is an “elastic”
`term with a range of possible meanings. Smith v. United
`States, 508 U.S. 223, 241-43 (1993) (Scalia, J., dissenting)
`(listing a few of use’s varied definitions). For example, in
`Smith, the Justices, relying on different understandings of the
`ordinary meaning of to use an object or instrument, adopted
`different interpretations of the phrase to “use[] . . . a firearm”
`in 18 U.S.C. § 924(c)(1) (Supp. II 1990), which imposed
`“specified penalties if the defendant, ‘during and in relation to
`any crime of violence or drug trafficking crime[,] uses or
`carries a firearm.’” Id. at 227-28 (majority opinion) (alteration
`in original). On the one hand, Justice Scalia reasoned that,
`consistent with the ordinary meaning of to use an instrument,
`an individual used a firearm within the meaning of the statute
`when it used it for its intended purpose, namely as a firearm.
`See id. at 242-44 (Scalia, J., dissenting). Writing for the
`majority, Justice O’Connor, on the other hand, adopted a
`
`
`the proper construction of governing law.” Kamen v. Kemper
`Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
`
`
`
`20
`
`
`
`
`
`broader reading of to use a firearm that would allow a broader
`range of uses (such as “pistol-whip[ping]”) based not only on
`the plain meaning of use but also on the context of the
`surrounding statutory provisions. See id. at 228-37 (majority
`opinion).
`
`We encounter a similar predicament here. As the D.C.
`Circuit observed in ACA International in considering the
`possible interpretations of section 227(b)(1)(A)’s phrase
`“using any [ATDS],” when an ATDS has
`
`the “capacity” both to perform the
`autodialer functions set out in the
`statutory definition and to perform
`as a traditional phone, does the bar
`against “making any call using” an
`ATDS apply only to calls made
`using
`the equipment’s ATDS
`functionality? Or does the bar
`apply to all calls made with a
`device having that “capacity,”
`even ones made without any use of
`the
`equipment’s
`autodialer
`capabilities? Or does the bar apply
`to calls made using certain
`autodialer functions, even if not all
`of them?
`
`885 F.3d at 704 (emphasis added) (declining to resolve this
`question when
`the petitioners did not challenge an
`interpretation of section 227(b)(1)(A)’s language). Faced with
`this conundrum, we must seek “to give e
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