Resolves Years of Ambiguity Over What Equipment Is Covered by the TCPA
On April 1, 2021, the U.S. Supreme Court issued its opinion in Facebook, Inc. v. Duguid,1 a case addressing a split among federal circuit courts as to what constitutes an "automatic telephone dialing system"—often referred to as an "autodialer"—under the Telephone Consumer Protection Act of 1991 (TCPA).2 The Court sided with Facebook. It held that to qualify as an "automatic telephone dialing system," a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator. Accordingly, calls and text messages from systems that do not include a random or sequential number generator are outside the scope of the TCPA provision at issue in the case—the provision governing calls and texts to wireless numbers. This is good news for businesses that regularly call or text consumers.
Background of the Autodialer Definition
The TCPA generally prohibits calls to wireless telephone numbers made without some form of consent if the calls are placed using an "automatic telephone dialing system."3 Courts uniformly have interpreted "calls" to include text messages.4 The TCPA itself defines "automatic telephone dialing system" 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" (hereinafter "Autodialer Definition").5 The statute is routinely invoked by plaintiffs' class action counsel due to its statutory damages of $500-$1,500 per call or text that violates the statute.6
Since 2003, courts have struggled to interpret the Autodialer Definition. That difficulty began because of ambiguous statements from the Federal Communications Commission (FCC), which implements the TCPA. Specifically, in FCC Declaratory Rulings from 2003, 2008, and 2012, the FCC suggested that equipment could fall within the Autodialer Definition if it could dial from a database of numbers, if dialing could be done without human intervention, or possibly if it could dial telephone numbers in random or sequential order.7 Many district courts believed they were bound to follow the FCC's interpretation of the TCPA, and therefore a variety of tests for what qualifies as an "automatic telephone dialing system" were adopted in district courts throughout the country. These inconsistent tests left businesses facing inconsistent rulings in TCPA litigations, depending upon where the case was filed. This in turn led to a proliferation of TCPA class action lawsuits. According to the U.S. Chamber of Commerce, between 2010 and 2014 alone, TCPA lawsuits increased by more than 560 percent.
Industry groups petitioned the FCC to clarify the proper interpretation of the Autodialer Definition. Unfortunately, the FCC's resulting ruling made things even worse. In 2015, the FCC issued a ruling interpreting the Autodialer Definition extremely broadly—more broadly than any court had—to include any system with the potential capacity to automatically dial stored telephone numbers, even if the equipment would have to be modified to add that functionality.8 Industry groups and businesses appealed. In ACA International v. FCC, the U.S. Court of Appeals for the D.C. Circuit held that the FCC's expansive interpretation was arbitrary and capricious, and invalidated that aspect of the 2015 FCC ruling.9
Following ACA International, courts went back to applying a variety of interpretations of the Autodialer Definition, and the courts of appeals started to weigh in. Some held that the Autodialer Definition covers any system with the capability of automatically dialing stored numbers, without regard to use of "a random or sequential number generator."10 Other circuit courts of appeals held that the Autodialer Definition requires the capability of using a "a random or sequential number generator" to either "store" or "produce" the numbers to be dialed, finding mere storage of numbers insufficient.11
The Duguid v. Facebook Litigation
Facebook found itself stuck under the broad Autodialer Definition in a suit brought by Noah Duguid arising out of automated account-related text messages Duguid received. Initially, the U.S. District Court for the Northern District of California dismissed Duguid's claim, concluding that Duguid failed to allege facts showing that Facebook's texting equipment fell within the Autodialer Definition. The court concluded that at best the plaintiff's allegations could be read to "suggest that Facebook does not dial numbers randomly but rather directly targets selected numbers based on the input of users and when certain logins were attempted," which the court concluded was insufficient to meet the statutory definition.12 The U.S. Court of Appeals for the Ninth Circuit reversed. Relying on circuit precedent, the court concluded that any system that has "the capacity to 'store numbers to be called' and 'to dial such numbers automatically'" constitutes an automatic telephone dialing system.13
Facebook took its case to the U.S. Supreme Court. The Court granted certiorari on July 9, 2020, to resolve the meaning of the statutory Autodialer Definition and heard argument in the case on December 8, 2020.
The Supreme Court's Ruling
In a unanimous decision, the Supreme Court reversed the Ninth Circuit. The Court applied the "series-qualifier canon" of statutory construction, and rules of grammar and punctuation, to interpret the Autodialer Definition such that the modifier "using a random or sequential number generator" applies to both of the verbs "store" and "produce."14 The Court explained that this reading aligns with the statutory context of the TCPA, which aims to "target a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity."15 The Court rejected Duguid's expansive reading of the statute, which would have covered any equipment with the capacity to store and dial telephone numbers, because such a reading would "capture virtually all modern cell phones."16 The Court also rejected Duguid's argument that cell phones are not within the Autodialer Definition because they rely on "human intervention" to dial.17 It explained that "all devices require some human intervention" and it "decline[d] to interpret the TCPA as requiring such a difficult line-drawing exercise …"18 It summed up as follows: "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. This definition excludes equipment like Facebook's login notification system, which does not use such technology."19
Implications
The Court's decision likely will have significant implications. It now will be much more difficult for plaintiffs to prove use of an automatic telephone dialing system. This is particularly so in TCPA cases involving text messages. Texting systems almost never have the capability of using a random or sequential number generator to store or produce telephone numbers; texting systems are designed to store consumers' phone numbers and send messages only to those specific phone numbers. We therefore anticipate the volume of TCPA litigations to decrease.
That does not mean the TCPA is dead. TCPA cases will continue to be filed. Some dialers still have random or sequential number generation capabilities, even if they are no longer used. TCPA plaintiffs may pursue claims hoping to encounter such systems. Moreover, there are other ways to violate the TCPA beyond using an autodialer to call or text a wireless number without prior express consent. For example, the TCPA prohibits many calls made using an artificial or prerecorded voice.20 And it is unclear whether that prohibition includes live calls preceded by a prerecorded disclosure that the call will be recorded. The TCPA also includes a private right of action for anyone who receives more than one call within any 12-month period by or on behalf of the same entity in violation of the FCC's Do Not Call regulations.21 In addition, it is worth noting that more than a dozen states have laws prohibiting marketing text messages without consent, often in writing. While certainly a welcome ruling, businesses that call or text consumers regularly should continue to review their practices to ensure compliance with applicable laws and reduce the risk of litigation.
[1] No. 19-511, 592 U.S. ___ (2021).
[2] 47 U.S.C. § 227.
[3] Id. § 227(b)(1)(A)(iii). Whether written or oral consent is required depends upon whether the calls/texts are purely informational, or whether they introduce an advertisement or are telemarketing. 47 C.F.R. § 64.1200(a)(1), (2).
[4] See, e.g., Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019).
[5] 47 U.S.C. § 227(a)(1).
[6] 47 U.S.C. § 227(b)(1), (b)(3).
[7] In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶¶131-33 (2003); In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, ¶¶12-14 (2008); In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 FCC Rcd. 15391, ¶2 n.5 (2012).
[8] In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961 (2015). We described this ruling in detail at the time: “FCC Issues Omnibus TCPA Declaratory Ruling and Order Addressing Numerous Issues Regarding Calling and Texting Consumers,” WSGR Data Advisor (Sept. 11, 2015), https://www.wsgrdataadvisor.com/2015/09/fcc-issues-omnibus-tcpa-declaratory-ruling-and-order-addressing-numerous-issues-regarding-calling-and-texting-consumers.
[9] 885 F.3d 687, 695–700 (D.C. Cir. 2018).
[10] See Marks v. Crunch, 904 F.3d 1041 (9thCir. 2018); Duran v. La Boom Disco, Inc., 955 F.3d 279 (2d Cir. 2020).
[11] See Dominguez ex rel. Himself v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301 (11th Cir. 2020); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020).
[12] No. 15-cv-00985-JST, 2017 U.S. Dist. LEXIS 22562, at *14–15 (N.D. Cal. Feb. 16, 2017).
[13] 926 F.3d 1146, 1151 (9th Cir. 2019) (quoting Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018)).
[14] Facebook, 592 U.S., at __ (slip op., at 5–7).
[15] Id. at ___ (slip op., at 8).
[16] Id.
[17] Id. at ___ (slip op., at 9, n. 6).
[18] Id.
[19] Id. at ___ (slip op., at 7).
[20] 47 U.S.C. § 227(b)(1)(B).
[21] 47 U.S.C. § 227(c)(5).
