Slender Autodialer Interpretation less than TCPA

The U.S. Supreme Court, in Fb, Inc. v. Duguid,1 resolved a circuit break up on how to interpret the term “automatic phone dialing system” (ATDS, or autodialer) in the Telephone Purchaser Protection Act (TCPA) (47 U.S.C. § 227). A unanimous Court docket adopted a narrow definition of ATDS that requires that an autodialer have the potential to make numbers randomly or sequentially (and not simply the capacity to dial from a list), thus limiting the forms of devices and methods that are topic to TCPA’s constraints. This choice delivers clarity to entities that depend on calls to mobile phones and textual content messages for internet marketing and communicating with prospects, as nicely to many federal courts that have stayed litigation pending the Supreme Court’s selection.

The TCPA prohibits any human being from calling a wi-fi phone number applying an ATDS (or autodialer) except if: (1) the caller has received the referred to as party’s prior convey consent for informational calls or prior express prepared consent for telemarketing calls or (2) the phone is created for emergency functions.2 The TCPA also contains limitations on the use of an artificial or prerecorded voice for phone calls. For case in point, the TCPA calls for prior consent for calls to household traces working with an synthetic or prerecorded voice, but does not involve consent for autodialed calls to household lines except those people phone calls use an synthetic or prerecorded voice. The Fb opinion does not tackle phone calls that use an synthetic or prerecorded voice, but that do not use an autodialer, nor does it tackle fax internet marketing or phone calls built to landline cellular phone figures.

The TCPA defines ATDS as “equipment which has the capacity—(A) to retail outlet or develop phone figures to be identified as, employing a random or sequential amount generator and (B) to dial these types of quantities.”3 While three circuits construed the expression to call for the ability to create numbers randomly or sequentially,4 three other circuits experienced thought of the phrase “using a random or sequential range generator” to modify only the word “produce” and not both equally “store” and “produce” and so broadly construed the expression to incorporate devices that can shop and dial phone figures (even if the products does not use a random or sequential variety generator).5 Under the narrower definition of autodialer in the long run adopted by the Supreme Court docket, devices that automatically dials phone quantities from a list of purchaser figures would not be viewed as an autodialer. As defined by Justice Sotomayor, crafting for the Court docket, “Congress’ definition of an autodialer requires that in all circumstances, whether or not storing or making figures to be known as, the tools in question need to use a random or sequential number generator.”6 Stated otherwise, she wrote that “[t]he statutory context confirms that the autodialer definition excludes gear that does not ‘us[e] a random or sequential selection generator.’”7

The Facebook case was an appeal from a determination by the U.S. Court docket of Appeals for the Ninth Circuit. In the underlying circumstance, the plaintiff, Noah Duguid, alleged that Fb sent him numerous textual content messages notifying him that another person experienced attempted to log into a Fb account associated with his phone range, even even though he alleged that he did not have a Facebook account and experienced not supplied Fb with his telephone selection (which the Court proposed may possibly have resulted from a reassigned quantity). The federal district court for the Northern District of California granted Facebook’s motion to dismiss on the foundation that the plaintiff failed to allege that Fb utilized an autodialer due to the fact he did not assert that the textual content messages were being sent to quantities that were randomly or sequentially created. On charm, the Ninth Circuit observed that the plaintiff had said a assert less than the TCPA mainly because, less than preexisting Ninth Circuit precedent, to qualify as an autodialer a device only required to have the capability to keep numbers to be termed and to quickly dial all those quantities.

The Supreme Court docket reversed and remanded the situation to the Ninth Circuit, crafting that “[t]o qualify as an ‘automatic telephone dialing system’ a system ought to have the capacity both to retailer a telephone number utilizing a random or sequential generator or to develop a telephone number using a random or sequential generator.” The Supreme Court dependent its conclusion on a organic studying of the sentence and typical policies of grammar, which provide that when there is a series of nouns or verbs followed by a modifier at the conclusion of the record, the modifier usually applies to the whole sequence. The Supreme Court also noted that the placement of a comma in advance of the modifying phrase “using a random or sequential range generator” suggests that the phrase applies to both equally previous components, i.e., to shop and to create. The Court cautioned that a broad interpretation of the phrase ATDS to include things like any tools that stored and dialed telephone quantities would contain all calls and texts coming from smartphones – a consequence that is at odds with the purpose of the TCPA to proscribe narrowly only constrained styles of calls. Centered on this pure examining of the statute, the Supreme Courtroom held that Facebook’s login notification process, which does not use a random or sequential selection generator, did not fall within the TCPA’s definition of ATDS.

Whilst the Facebook decision should limit the quantity of litigation searching for statutory damages of up to $1,500 per text or connect with under the TCPA, businesses that interact in lawful text and other mobile marketing and advertising should really be cautious to guarantee that their methods and processes comply with all aspects of the TCPA, as well as other legal guidelines governing telemarketing and any applicable field guidelines. In recent months, for case in point, plaintiffs’ lawyers have increasingly sued above alleged do-not-call violations (such as calls to reassigned landline numbers). Plaintiffs’ lawyers will very likely proceed to investigate methods to file putative course action fits looking for statutory damages. For this rationale, enterprises should make sure that they comply with the TCPA’s restrictions on artificial and prerecorded voice calls, the FTC’s Telemarketing Revenue Rule, the requirements affiliated with the nationwide and state do-not-connect with registries, and the specifications to maintain corporation-precise, interior do-not-phone lists. Compliance may possibly contain developing contacting methods, maintaining correct choose-out data, and education personnel.


1 Facebook, Inc. v. Duguid, _ S. Ct. _, 2021 WL 1215717 (U.S. Apr. 1, 2021).

2 47 U.S.C. § 227(b) 47 C.F.R. § 64.1200(a). The Courtroom assumed, without having choosing, that a textual content information is a phone under the TCPA.

3 47 U.S.C. § 227(a)(1).

4 See Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) Gadelhak v. AT&T Servs., 950 F.3d 458 (7th Cir. 2020) Glasser v. Hilton Grand Holidays Company, LLC, 948 F.3d 1301 (11th Cir. 2020). Greenberg Traurig, LLP represented the profitable defendant in the Dominguez case, which was the to start with circuit court docket to construe the term (and did so continually with the way the U.S. Supreme Court in the long run ruled).

5 See Duran v, La Boom Disco, Inc., 955 F.3d 279 (2d Cir. 2020) Allan v. Pennsylvania Greater Educ. Help Agency, 968 F.3d 567 (6th Cir. 2020) Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), cert. dismissed, 139 S. Ct. 1289 (2019) see normally 4 Ian C. Ballon, E-Commerce & Internet Law 2d § 29.16 (2020) (cited in the petition for cert. in Duguid, conveying the evolution of the law in this area and the circuit break up preceding the Supreme Court’s ruling).

6 Fb, Inc. v. Duguid, _ S. Ct. _, 2021 WL 1215717, at *5 (U.S. Apr. 1, 2021).

7 Facebook, Inc. v. Duguid, _ S. Ct. _, 2021 WL 1215717, at *6 (U.S. Apr. 1, 2021), quoting 47 U.S.C. § 227(a)(1)(A).


©2021 Greenberg Traurig, LLP. All legal rights reserved.
National Regulation Evaluate, Quantity XI, Number 93