More than two years after the Supreme Court released its ruling in Facebook v. Duguid, confirming the meaning of automatic telephone dialing systems (ATDS) under the Telephone Consumer Protection Act (TCPA), a plaintiff has filed a petition for a writ of certiorari to the Supreme Court to challenge the Ninth Circuit’s application of the Facebook decision. The Facebook ruling effectively closed the door on one of the broadest classes of TCPA-related litigation; since then, plaintiff-side advocates have worked ceaselessly, though largely unsuccessfully, to chip away at the ruling. If the Supreme Court accepts the appeal, this will represent a significant development in the ongoing saga of ATDS litigation.

The case, Pascal v. Concentra, Inc., involves allegations that Concentra sent a job advertisement text message using an ATDS without the plaintiff’s prior express consent. Specifically, the plaintiff alleges that Concentra used Textedly, a web-based application integrated with Twilio’s text messaging API, to automatically send batches of text messages to phone numbers stored in Textedly’s database that are assigned a sequential identifier and then dialed in sequential order.

The district court, affirmed by the Ninth Circuit, rejected the plaintiff’s claims at the summary judgment stage, holding that Textedly was not an ATDS because the phone numbers were not randomly or sequentially generated and were texted in the same order they were uploaded to Textedly. The lower courts relied on the Ninth Circuit’s 2022 decision in Borden v. eFinancial, LLC, which held that a telephony system must randomly or sequentially generate phone numbers, not just any number, to qualify as an ATDS.

The plaintiff has now appealed the Ninth Circuit’s ruling, arguing that its interpretation of ATDS is inconsistent with, and impermissibly narrows, the plain language of the TCPA, because the TCPA defines ATDS to include systems that have the capacity to either produce or store phone numbers to call using a random or sequential number generator. The plaintiff also relies on the Seventh Circuit’s pre-Facebook decision in Gadelhak v. AT&T Services (authored by Justice Amy Coney Barrett when she was a member of the Seventh Circuit), which, the plaintiff asserts, rejected the Ninth Circuit’s statutory interpretation. All circuit courts of appeal to consider the question after Facebook have aligned with the Ninth Circuit.

Troutman Pepper will continue to monitor this appeal and report on any developments.