TCPA Blog’s Michael Daly will be participating in a webinar titled “Supreme Court’s Facebook Decision Upends TCPA Litigation Landscape.” This webinar on Thursday, April 22, 2021, will delve into the Supreme Court’s decision in Facebook v. Duguid, which resolved a split among the lower courts over how to interpret the TCPA’s definition of an “automatic telephone dialing system.” The panelists from the Consumer Litigation Committee of the American Bar Association’s Litigation Section will analyze the decision and discuss the future of TCPA litigation.
For more information and to register, please click here.
In a decision issued this morning, the Supreme Court settled a long-running debate over the scope of the TCPA’s “automatic telephone dialing system” definition: “whether that definition encompasses equipment that can ‘store’ and dial telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.” Facebook, Inc. v. Duguid, 592 U.S. — (2021).
The Court unequivocally held that devices that merely store numbers from a premade list do not qualify as autodialer systems subject to the TCPA. “To qualify as an [ATDS],” explained Justice Sotomayor, writing for Court, “a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number” using either form of generation. Id. at 1.
The Southern District of California recently dismissed the TCPA case Hildre v. Heavy Hammer, Inc., No. 3:20-cv-00236, 2021 WL 734431 (S.D. Cal. Feb. 25, 2021), for the plaintiff’s failure to adequately allege that the defendants had used an automatic telephone dialing system (“ATDS”) when placing calls.
The plaintiff alleged that the defendants called him using an ATDS without first obtaining his consent. Specifically, he claimed that the out-of-state defendant called him twice using a California telephone number. After the first call, plaintiff claimed that he asked to be removed from the call list. When plaintiff received the second call, he alleges that there was a “noticeable pause” after he answered.
The Seventh Circuit last week affirmed its holding in Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020) that, to qualify as an “automatic telephone dialing system” (ATDS) under the TCPA, a device or calling system must have the ability to randomly or sequentially generate the phone numbers that it calls. As we reported here and here, this interpretation of the statute’s ATDS definition excludes systems and devices that place calls from a premade list of numbers, such as a list of customers’ mobile numbers. Courts remain divided on how to interpret the ATDS definition and the Supreme Court is expected to address the issue in a case that is currently before it, Facebook, Inc. v. Duguid.
TCPA Blog’s Mike Daly authored an article for the American Bar Association’s Consumer Litigation Committee titled, “Senescence and Sensibility: Will the Supreme Court Mothball the TCPA?” that discusses developments around TCPA’s autodialer restriction.The article addresses the dispute between courts over what qualifies as an ATDS and the impact the dispute has had on businesses trying to comply with the statue when its scope varies between circuit courts.The article also highlights how what constitutes an ATDS may finally be resolved in Facebook v. Duguid and what the case’s decision could mean for pending cases.
The full article is available for American Bar Association’s Consumer Litigation Committee subscribers.
On January 6, 2021, the District of Maryland dismissed a TCPA claim (and a derivative claim under Maryland’s MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., No. 20-0008, 2021 WL 50922 (D. Md. Jan. 6, 2021). The decision is a helpful reminder that a number’s purpose can be a critical component of a TCPA claim and that defendants should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.
Last week, the District of Nevada contributed to a growing consensus among Ninth Circuit district courts that TCPA liability generally does not extend to companies that produce equipment used to place unlawful calls—such as messaging platforms and contact lists— because the entities that use such equipment usually do so on behalf of another company, and not the equipment provider.
Tomorrow morning, the Supreme Court will hold oral argument via teleconference in Facebook v. Duguid, which concerns the proper interpretation of the TCPA’s definition of an “automatic telephone dialing system.” The question presented is “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.’” You can listen to the argument live at various media outlets and later on the Court’s website.
This week, Facebook and the United States government filed responses to Plaintiff’s brief in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the circuit-splitting uncertainty over what does and does not qualify as an ATDS under the TCPA. The Plaintiff’s brief—which we covered here—argues that the adverbial phrase “using a random or sequential number generator” modifies the verb “to produce” but not the verb “to store” in the statute’s definition of an ATDS. See 47 U.S.C. § 227(a)(1). If the TCPA is interpreted in this fashion, liability could follow from using any device that can store and automatically dial a number—including, among other things, virtually every smartphone in use today.
A few weeks ago, the Eastern District of Louisiana held that courts cannot impose liability under Sections 227(b)(1)(A) or (b)(1)(B) of the TCPA for calls that were made before the Supreme Court cured those provisions’ unconstitutionality by severing their debt collection exemptions. The first-of-its-kind decision reasoned that courts cannot enforce unconstitutional laws, and severing the statute applied prospectively, not retroactively. Plaintiffs privately panicked but publicly proclaimed that the Creasy decision was “odd” and would not be followed.