Under the Court's reading, an autodialer is a device that uses a “random or sequential number generator” to “store or produce telephone numbers to be called.”
On April 1, 2021, in Facebook, Inc. v. Duguid, the Supreme Court of the United States unanimously resolved the circuit split and clarified the reach of the Telephone Consumer Protection Act (TCPA) and the definition of what constitutes an automatic telephone dialing system. Though the Court's ruling was narrow, it will have a significant impact on the landscape of TCPA litigation because fewer devices will remain within reach of the law's provisions. The TCPA prohibits the use of certain devices called “automatic telephone dialing systems” (aka ATDS or autodialers) to engage in telemarketing practices. But which kinds of devices count as an autodialer and which do not? The circuit courts recently split over the issue between those taking a broad view of what counts as an autodialer (like the Ninth Circuit) and those adopting a more restrictive view (like the Seventh Circuit). Those divergent rulings left companies and consumers with deep uncertainty about which technologies fall within the scope of the law and the circumstances under which they do so. Under the Court's reading, an autodialer is a device that uses a “random or sequential number generator” to “store or produce telephone numbers to be called.”
The Case Before the Court
Like many online platforms, Facebook uses a security feature to alert users via text message when someone logs into the user's account from a new device or browser. Facebook sent one of those alerts to Noah Duguid, notifying him that someone had accessed the account to which his cellphone number was attached. There was only one problem: Duguid has never had a Facebook account and never gave Facebook his cellphone number.
Duguid tried unsuccessfully to stop the messages, and eventually brought a class action lawsuit against Facebook for violation of the TCPA. Duguid alleged that Facebook's use of stored numbers to send automated text messages violated the TCPA prohibition against the use of autodialers. Facebook sought dismissal of Duguid's lawsuit, arguing he failed to state a claim that the alert system violated the TCPA because it does not use a “random or sequential number generator” to send the messages. The Ninth Circuit took Duguid's side and ruled that Facebook had violated the TCPA because the statute prohibits sending messages from a stored list using automatically dialed numbers.
The Circuit Split
The Ninth Circuit's decision below deepened a circuit split over what counts as an autodialer. On one side, the Second, Sixth and Ninth Circuits adopted a broad approach—favored by Duguid—that an autodialer is any device that can dial a stored number automatically. On the other side, the Third, Seventh and Eleventh Circuits adopted the view preferred by Facebook: A device may be considered an autodialer only if it dials numbers using random or sequentially generated numbers.
The Ruling in Facebook v. Duguid
The Supreme Court unanimously resolved the circuit split in favor of the circuits taking the narrower approach that, to fall within the TCPA's scope, an autodialer must be capable of calling or texting random or sequentially generated numbers.
The Court first looked to the text of the statute's definition of an autodialer:
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.
Next, the Court applied the “series-qualifier canon” of statutory construction and determined that the phrase “random or sequential number generator” modifies the antecedent verbs “store” and “produce.” So, under the Court's reading, an autodialer is a device that uses a “random or sequential number generator” to “store or produce telephone numbers to be called.”
The Court noted that its reading of the statutory definition was the most natural one possible. What's more, the Court concluded, its reading comports with Congress' intent in passing the TCPA to prevent certain types of telephone calls that, left unfettered, would risk “dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.”
To adopt Duguid's interpretation, the Court observed, would take a “chainsaw” to the problems addressed by the TCPA “when Congress meant to use a scalpel.” As an example of the unintended carnage the “chainsaw approach” would produce, the Court noted a broad reading would make ordinary cellphone users liable when they use speed dialing features or send automated text message responses.
The Scope of the Court's Ruling
The Supreme Court's ruling in Facebook v. Duguid is a narrow one that still has far-reaching implications. It is narrow in the sense that the Court did not address other contentious provisions of the law related to things like the use of recordings, do-not-call provisions, call restrictions or abandoned telemarketing calls. But the Court's choice to adopt the more restrictive view of the autodialer definition is still likely to have a significant impact on the number of viable TCPA suits because the Court's reading of the statute will shrink the universe of devices that count as an autodialer and, therefore, fall within the purview of the TCPA. While this decision significantly narrows the scope of the TCPA, companies should keep in mind that several states have TCPA-like laws that may limit the use of automated calling and texting.
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