Supreme Court to Finally Decide Definition of Autodialer in TCPA Litigation

On July 9, 2020, the U.S. Supreme Court granted a long-pending petition for certiorari in Facebook Inc. v. Duguid, Noah, et al. to address a hotly debated question in Telephone Consumer Protection Act (TCPA) litigation: “whether the definition of [automated telephone dialing system] encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” The grant of certiorari comes on the heels of the Court’s sweeping decision in Barr v. American Ass’n of Political Consultants, severing the government debt collection exception to the TCPA’s “autodialer” prohibition as a content-based restriction on free speech.

The TCPA broadly prohibits most calls using any ATDS or autodialer, defined by statute 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.” Given the lack of clarity in the statutory language, courts have grappled with whether “a random or sequential number generator” must be used to only “store” the numbers, or only to “produce” the numbers, or to “dial” the numbers after having “randomly or sequentially” generated or produced them. Further complicating court interpretations is the FCC’s interpretations stating that a dialing system known as a “predictive dialer” is in fact an “autodialer” under the TCPA if it is capable of placing calls from a list of numbers on a database.

In ACA Int’l, et al., v. FCC, the D.C. Circuit vacated the FCC’s governing interpretation of the definition of ATDS, and in particular its ruling that the term “capacity” referred to both present and future capacity, finding the FCC’s interpretation would “subject ordinary calls from any conventional smartphone to the Act’s coverage.” Following the D.C. Circuit’s decision, the Third, Seventh, and Eleventh Circuits all interpreted the TCPA statute to require that the device used must have the present capacity to generate numbers randomly or sequentially to either store or produce the numbers in order to qualify as an autodialer. However, the Ninth and Second Circuits, and just days ago the Sixth Circuit, have much more broadly defined an ATDS, holding, in essence, that the FCC’s Predictive Dialer Orders were not set aside by the D.C Circuit’s decision in ACA Int’l, et al., and that the TCPA’s ATDS definition continues to apply to predictive dialers and other systems that call automatically from a list of numbers, thus encompassing all devices with the present capacity to store and automatically dial numbers.

By granting certiorari in Facebook, the Supreme Court will now have the opportunity to bring clarity to the ATDS statutory definition and FCC interpretations. At issue in the case is software permitting users to opt-in to additional security features, including one feature allowing a user to provide a cellphone number to receive a text message if the user’s account is accessed by a potentially suspicious log-in. The plaintiff filed a putative class action, alleging that these security notification text messages violated the TCPA’s prohibition on making calls using an ATDS. Facebook moved to dismiss and the district court ruled in its favor, finding the plaintiff’s allegations were insufficient. However, the Ninth Circuit reversed, holding that the plaintiff adequately alleged Facebook sent unsolicited security notification text messages using an autodialer in violation of the TCPA.

Facebook appealed, asking for the Supreme Court’s intervention to resolve the split between circuits as to the definition of ATDS. As the case law stands today, a TCPA action alleging impermissible use of an autodialer may succeed in one jurisdiction and fail in another. The Court will now, hopefully, provide clarity on this issue and allow businesses to plan their practices accordingly.

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