In the wake of the Supreme Court’s April 2021 Facebook v. Duguid decision, plaintiffs prosecuting class actions across the nation have been searching hard to mine other potential ambiguities in the TCPA to support allegations about the use of an ATDS. One area of focus has been on whether that term – which is defined as equipment that can “store or produce telephone numbers to be called, using a random or sequential number generator” – applies to equipment that assigns random or sequential identifiers to stored numbers that were not randomly or sequentially generated.
The retroactivity of the Supreme Court’s decision in Barr v. AAPC is back before the Supreme Court to decide—if, that is, it grants the petition for certiorari that was just filed by the Defendant in Lindenbaum v. Realgy.
Some background may help. As our regular readers know, Barr v. AAPC held that the TCPA’s exemption for federal debt-collection calls—and only federal debt-collection calls—was a content-based regulation of speech that violated the First Amendment. But rather than strike down all of the statute’s restrictions on automated equipment, the Court saved them by severing that one exemption from the statute.