Earlier today, the United States Supreme Court granted the petition for certiorari in which Facebook had asked the Court to resolve the growing circuit split regarding the definition of an ATDS. The Court limited its review to the second question presented, namely “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.’” This comes hot on the heels of the Court’s ruling earlier this week on the constitutionality and severability of the government-debt exception to the statute’s restrictions on automated telephone equipment.
Facebook filed its petition in October 2019, asking the Court to weigh in on, among other things, the interpretation of the TCPA’s definition of an ATDS. Following the Court’s decision in Barr v. AAPC on Monday, Facebook submitted a supplemental brief arguing that its question about the ATDS definition is even more important now than when it initially filed its petition. Specifically, Facebook argued that, absent clarification of the ATDS definition, callers could face liability in the Ninth Circuit for “innocuous” communications that would not be subject to liability elsewhere. Facebook also noted that recent decisions from the Second, Seventh, and Eleventh Circuits had only contributed to the circuit split and ensuing confusion.
For his part, the plaintiff in Duguid filed his own supplemental brief and acknowledged that the growing circuit split may warrant review of the ATDS issue. But he noted that the definition of an ATDS is also the subject of a regulatory proceeding before the FCC and that “[r]egulatory action by the FCC, if within the scope of authority delegated to the agency, could potentially supersede a ruling by this Court on the best reading of the statute.” He also suggested that the Court may wish to request the views of the Solicitor General, who had yet to take a position on the ATDS issue, regarding whether certiorari should be granted. The Court declined to do so, granting the petition earlier today.
Suffice it to say that there will be considerable interest in this appeal from stakeholders across the TCPA spectrum. Briefing will commence shortly and argument should be heard—in one format or another—after the Court’s next term begins in October.