The U.S. Supreme Court has agreed to wade into the Telephone Consumer Protection Act (“TCPA”) fray again—this time over what qualifies as an autodialer under the TCPA. On July 9, 2020, the Supreme Court granted writ of certiorari in the case of Facebook Inc. v. Duguid, et. al., on the question of whether an “automatic telephone dialing system” (“ATDS”) under the TCPA covers only devices that send messages or make calls to randomly or sequentially generated phone numbers, or whether the term more broadly includes all devices with the capacity to store automatically dialed numbers.

The TCPA makes it unlawful for a person to place calls to cellular and certain specialized telephone lines using an ATDS without prior consent. 47 U.S.C. § 227(b)(1)(A). Plaintiff in the case alleged that Facebook used an autodialer to send security related, new device login text messages to plaintiff’s cellphone, and that he was subsequently was unable to stop the messages for several months, in violation of the TCPA. Facebook challenged the lawsuit on both First Amendment grounds and statutory defenses.

The Court granted cert. on the issue of whether 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.” The issue has been hotly debated throughout the federal court system in recent years, with different circuits reaching different conclusions.

The Ninth Circuit in the Facebook case relied its own 2018 precedent, Marks v. Crunch San Diego (904 F.3d 1014), to conclude that the TCPA’s prohibition on calls from an ATDS would encompass Facebook’s login-notification messages. In Marks, the Ninth Circuit has held that because the TCPA defines an ATDS as “means equipment which has the capacity—(1) to store or produce telephone numbers to be called . . . ,” the equipment need not actually store or produce telephone numbers to be called but need only have the capacity to store those telephone numbers. See Marks, 904 F.3d at 1052 (9th Cir. 2018).  

The Ninth Circuit’s rational in Marks was later followed by the Second Circuit. See Duran v. La Boom Disco, Inc., 955 F.3d 279, 280 (2d Cir. 2020). Other Circuits, including the Seventh and Eleventh Circuits, however, have sided with the more narrow definition of ATDS to cover only devices that send messages or make calls to randomly or sequentially generated phone numbers. See Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1304 (11th Cir. 2020); Gadelhak v. AT&T Servs., 950 F.3d 458, 460 (7th Cir. 2020).

Critics of the opinion the assert that the Ninth Circuit’s ruling in Marks, and affirmed again in Facebook, dramatically expanded the definition of an ATDS beyond the statute’s text, effectively rendering every smart phone as an autodialer.

In its Petition for Writ of Certiorari, Facebook urged the Court to accept the case on the grounds that the Ninth Circuit’s interpretation of ATDS was “wildly overbroad,” and amounted to “extending the TCPA’s up-to-$1,500-per-call penalty to calls and texts millions of Americans make with their smartphones every day.” According the Facebook’s Petition for Cert, “because the TCPA imposes liability on any call made from an ATDS—regardless of whether it actually uses any autodialing functions to make the calls at it issue—the Ninth Circuit’s interpretation renders unlawful virtually every wrong number called from the contacts list of any smartphone in the United States.”

Clarification from the Supreme Court in this issue is greatly needed, given that TCPA penalties can amount to $1,500 per call.

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