Today the Supreme Court granted certiorari in Facebook, Inc. v. Duguid where it will resolve a circuit split and decide the issue of whether an “automated telephone dialing system” (“ATDS” or “autodialer”) under the Telephone Consumer Protection Act (“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.” In other words, the Court will determine whether a caller uses an autodialer to place a call or send a text message if the platform being used merely dials without human involvement from a stored list of telephone numbers (the minority view), or whether the platform itself must randomly or sequentially generate the telephone numbers that it dials (the majority view).
The decision below reaffirmed the Ninth Circuit’s and, more recently, Second Circuit’s expansive readings of the TCPA’s ATDS definition — that is, merely having the capacity to store and dial numbers automatically suffices for an ATDS. This is in stark contrast to cases in the Seventh, Eleventh, and Third Circuits, which have held that, to be an autodialer under the statute, a device must have the capacity to “store or produce” numbers “using a random or sequential number generator” and to dial those numbers. In those three circuits, merely dialing from a stored list of targeted telephone numbers is not enough to constitute an autodialer.
Notably, the Supreme Court refrained from tackling the other question petitioner presented: whether the TCPA is an unconstitutional restriction of speech under the First Amendment. As we discussed earlier this week, the Court struck down the Government Debt Exception to the TCPA as unconstitutional, severed it, and left the remainder of the TCPA in place.
As the disparity among the circuits shows, the Supreme Court’s decision in Duguid will have a pivotal impact on the scope of the TCPA’s ATDS definition. Stay tuned as we continue to monitor this case throughout the Supreme Court’s upcoming term.