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 Northern District of California has said: No. In a recent line of decisions, it decided that “the generation and assignment of random or sequential id. numbers to telephone numbers . . . is not sufficient to establish that an autodialer was used” because the telephone numbers were obtained in a non-random way. This significant development may suggest that at least some judges in the Ninth Circuit are shunning the traditionally broad interpretation of ATDS that had prevailed in the Ninth Circuit before Facebook v. Duguid.
In the most recent of those decisions, Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2021 WL 5906055 (N.D. Cal. Dec. 14, 2021), the plaintiff’s TCPA claim came about when Defendant allegedly sent a text message to his mobile phone using a specific messaging platform Textedly, which allowed it to upload or manually enter phone numbers to be dialed. Then, in the sequence of when the phone numbers were uploaded, Textedly used a relational database to assign ID numbers to the phone numbers, store the numbers “in descending order by the value of the ‘id’ field,” and dial those numbers in the same order.
The plaintiff moved for summary judgment, claiming that Textedly’s use case meant as a matter of law that the phone numbers were “stored using a random or sequential number generator.” He argued that the famous footnote 7 of the Duguid decision made clear that an autodialer that meets the definition of ATDS “might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.”
Judge Joseph Spero rejected that argument and dismissed the case with prejudice. In doing so, he examined two earlier significant decisions from the Northern District of California: Tehrani v. Joie De Vivre Hospitality, LLC, et al., No. 19-cv-08168-EMC, 2021 WL 3886043 (N.D. Cal. Aug. 31, 2021), where the court granted a motion to dismiss a TCPA claim alleging the use of ATDS when the system generated and stored an index number for pre-collected phone numbers, and Hufnus v. DoNotPay, Inc., No. 20-cv-08701-VC, 2021 WL 2585488 (N.D. Cal. June 24, 2021), where the court granted a motion to dismiss a TCPA claim based on the plaintiff’s misguided reading of Footnote 7.
Judge Spero first agreed with Tehrani that the references to “telephone numbers” in the definition of ATDS implies that the capacity of “random or sequential number generator” only refers to a generator of phone numbers. Nodding to previous decisions in other courts in the Fourth, Sixth, and Ninth Circuits, Judge Spero concluded that plaintiffs in this and the two cases above advocated for a reading of Footnote 7 that was taken out of context because “the reference to a ‘preproduced list’ in Footnote 7 was based on a specific technology” and “the preproduced list was itself randomly generated.”
Judge Spero also agreed with the conclusion in the two prior cases in their interpretation of the Duguid decision in that “a platform that merely targets telephone numbers that were obtained in a non-random way is not an autodialer for the purposes of the TCPA.” Because of this interpretation, Judge Spero concluded that the defendant in Pascal did not send text messages in a manner that implicated the harm that TCPA sought to prevent when the defendant 1) obtained the phone numbers elsewhere and only sent the message in question to selected phone numbers that belong to individuals with certain professional credentials (physical therapists) within specified geographical locations and 2) stored and texted the phone numbers “in the same order they were uploaded or input into Textedly.”
Shortly after Pascal, Judge Spero issued another decision implicating the famous footnote 7, Cole v. Sierra Pacific Mortgage Co., Inc., No. 3:18-cv-01692-JCS, 2021 WL 5919845 (N.D. Cal. Dec. 15, 2021), where he rejected similar arguments advanced by the plaintiff because footnote 7 “is dicta” and plaintiff’s reading “would undermine the broad reasoning” of the Supreme Court’s Duguid decision. More district courts in other circuits (such as the Fifth Circuit) have also recently joined the jurisdictions noted above that hold this view. While it does not appear that an appellate court has yet weighed in on this issue, the growing persuasive authorities have built a helpful outline to counter this line of plaintiffs’ argument.