SCOTUS Keeps It Practical in Honing the Definition of an Autodialer under the TCPA

The U.S. Supreme Court Building

On April 1, 2021, the U.S. Supreme Court resolved a long standing issue plaguing providers of text message services and the companies engaging in text message marketing. Lower courts have been split in defining what constitutes an “automatic telephone dialing system” or auto-dialer with the definition either limited to equipment whose capacity to generate, store and dial telephone numbers was limited to random or sequential numbers or to any device with the capacity to store and automatically dial stored numbers using, for example, a speed-dial function.

The Court ruled, in Facebook, Inc. v. Duguid et al., that:

“To qualify as an “automatic telephone dialing system” under the TCPA, 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.”

The Telephone Consumer Protection Act, 47 U. S. C. §227(a)(1)., limits the coverage of that Act defines an autodialer 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.”

The Ninth Circuit ruled that Duguid had stated a TCPA claim because, while Facebook’s equipment did not generate random or sequential numbers, it did have the capacity to store phone numbers and to automatically dial them. In so ruling the Ninth Circuit held that the phrase “using a random or sequential number generator” only modified “produce” and did not modify “store.” Therefore, if the equipment was capable of storing phone numbers and automatically dialing them the equipment was an “autodialer.”

The Supreme Court reversed, stating that the phrase “ using a random or sequential number generator” applied both to the equipment’s storage as well as its production of phone numbers to be called. It interpreted the definition to require that in order to be an autodialer, the equipment must use a random or sequential number generator when storing the phone numbers to be called or when producing numbers to be called. Where equipment, like Facebook’s, had the capacity to store numbers that were not randomly or sequentially generated and then to call those numbers the equipment did not qualify as an autodialer. Justice Sotomayor, writing for the Court indicated that to rule otherwise would qualify as an autodialer “virtually all modern cell phones, which have the capacity to ‘store … telephone numbers to be called’ and ‘dial such numbers.’”