On Thursday, July 9, 2020, the Supreme Court granted the petition for certiorari in Facebook, Inc v. Duguid, regarding the definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA). The question accepted is “[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.’”
This is a significant development, as the majority of TCPA litigation concerns autodialed calls or text messages. Moreover, this decision follows the Supreme Court’s July 6, 2020, ruling in Barr v. American Association of Political Consultants, Inc. Thus, the Court may be indicating that interpretation of the TCPA’s automated calling provision needs to be reconsidered.
Presently, there is a growing circuit split over what types of dialing equipment are considered ATDSs and thus trigger liability under the TCPA’s automated calling restrictions for mobile phones. Under the TCPA, an ATDS is “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.” In 2015, the Federal Communication Commission (FCC) clarified that “capacity” includes the potential capacity to autodial, even if the system is not presently being used in such a capacity. However, in 2018, the U.S. Court of Appeals for the D.C. Circuit released its landmark decision in ACA Int’l v. FCC, striking down the FCC’s 2015 definition.
Since 2018, courts across the country have issued varying interpretations of what constitutes an ATDS. The Eleventh Circuit has generally interpreted an ATDS as a device that sends messages or makes calls to randomly or sequentially generated phone numbers, while the Ninth Circuit has broadly interpreted the definition of an ATDS to encompass all devices with the capacity to store and autodial phone numbers. In its petition, Facebook notes that “[t]he Ninth Circuit’s statutory interpretation renders the statute wildly overbroad, extending the TCPA’s up-to-$1,500-per-call penalty to calls and texts millions of Americans make with their smartphones every day. … This is a stunning reimagination of a statute that Congress passed to curb the telemarketing abuses of the late 1980s and early 1990s.”
Given this circuit split, the Supreme Court’s decision will likely have a significant impact on TCPA litigation across the country.
Facebook’s petition for a writ of certiorari is available here.
Why It Matters: This case has the potential to significantly alter the landscape of TCPA litigation. Defendants in currently pending TCPA ATDS cases might consider moving to stay proceedings until there is further clarity by the Supreme Court in 2021. Companies are advised to remain vigilant on TCPA compliance as it pertains to mobile phones.