On July 9th, the Supreme Court granted certiorari in Duguid v. Facebook to decide, once and for all, whether an automatic telephone dialing system (ATDS), as the Telephone Consumer Protection Act (TCPA) defines the phrase, requires random or sequential number generation. The case will be argued before the Court in the October 2020 Term.

Background

In its late 2018 Marks decision, the Ninth Circuit found that storage of telephone numbers, without random or sequential number generation, was enough to satisfy the first prong of the TCPA’s definition of an ATDS. Earlier this year, the Second Circuit joined the Ninth Circuit, while the Third, Seventh, and Eleventh Circuits have concluded that a system must have the capacity to generate random or sequential numbers to qualify as an ATDS.

In Duguid, Facebook challenged the Ninth Circuit’s definition, contending that it was too broad. In defending the lawsuit, Facebook argued that its equipment was not an ATDS because it stores numbers only to be called “reflexively” in response to “outside stimuli,” such as a suspicious log-in. Facebook’s equipment, it argued, does not “use a random or sequential number generator,” and as a result, does not constitute an ATDS. According to Facebook, if the definition of ATDS is not read to exclude equipment which only stores numbers for “responsive” calling, all smartphones will be considered autodialers. The Ninth Circuit disagreed, doubled-down on Marks, and ruled that the plaintiff’s claims could go forward.

Petition for Certiorari

In response, Facebook petitioned the Supreme Court for a writ of certiorari. In addition to questioning the validity of the government-backed debt collection exemption, a provision the Supreme Court struck down on Monday, Facebook specifically asked the Supreme Court to decide “[w]hether the definition of ATDS in the TCPA 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.’”

While Facebook’s petition was pending, numerous Courts of Appeals waded into the fray. The Seventh and Eleventh Circuits concluded that telephony must include a random or sequential number generator to qualify as an ATDS, while the Second Circuit sided with the Ninth, finding that telephony need only dial from a stored list to satisfy the first prong of the ATDS definition.

The strong circuit split almost certainly factored in the Supreme Court’s decision to take the case. After years of waiting for the FCC to provide clarity on this key definition, it seems the question of precisely what constitutes an ATDS will finally be decided by the Supreme Court.