Supreme Court Adopts Narrow Autodialer Definition

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.

In reaching this interpretation, the Court relied principally upon the “series-qualifier canon,” a principle of statutory construction that advises the reader to apply a modifier at the end of a list “to the entire series” of antecedents. Id. at 5 (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012)). As Justice Sotomayor explained:

Here, the series-qualifier canon recommends qualifying both antecedent verbs, “store” and “produce,” with the phrase “using a random or sequential number generator. . . .

To begin, the modifier at issue immediately follows a concise, integrated clause: “store or produce telephone numbers to be called.” The clause hangs together as a unified whole, using the word “or” to connect two verbs that share a common direct object, “telephone numbers to be called.” It would be odd to apply the modifier (“using a random or sequential number generator”) to only a portion of this cohesive preceding clause.

Id. at 6 (citation and some internal quotations omitted).

The Court also rejected the more expansive reading proposed by Duguid because of its far-reaching consequences:

Expanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel. Duguid’s interpretation of an autodialer would capture virtually all modern cell phones, which have the capacity to “store . . . telephone numbers to be called” and “dial such numbers.” 18 U.S.C. § 227(a)(1). The TCPA’s liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text message responses.

Id. at 8.

To the extent that the ATDS definition fails to cover dialing technologies not in existence at the time of the TCPA’s enactment in 1991, Justice Sotomayor explained that it is not the judiciary’s place to rewrite the statute:

In any event, Duguid’s quarrel is with Congress, which did not define an autodialer as malleably as he would have liked. “Senescent” as a number generator (and perhaps the TCPA itself) may be, that is no justification for eschewing the best reading of §227(a)(1)(A). This Court must interpret what Congress wrote, which is that “using a random or sequential number generator” modifies both “store” and “produce.”

Id. at 12.

Justice Alito concurred in the judgment and agreed with the Court’s analysis, but wrote separately to warn his colleagues against perfunctory application of construction canons:

Canons of interpretation can help in figuring out the meaning of troublesome statutory language, but if they are treated like rigid rules, they can lead us astray. When this Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations. No reasonable reader interprets texts that way.

Id. (Alito, J., concurring).

The Supreme Court’s rejection of the broad ATDS definition propounded by TCPA plaintiffs resolves much, if not all, of the uncertainty surrounding what constitutes an autodialer. And while this is a great ruling for businesses wishing to communicate with consumers on a timely basis through calls and texts, we don’t expect this to be the last that businesses hear from the plaintiffs’ bar (or Congress) on this issue. Click here for more analysis from Faegre Drinker on the Supreme Court’s decision in Facebook, Inc. v. Duguid.

Marsha J. Indych

About the Author: Marsha J. Indych

Marsha Indych handles complex commercial litigation and arbitration matters in jurisdictions throughout the United States, focusing on consumer class actions and domestic and international business disputes. She represents clients from a broad array of industries, including the health care, financial services, media, technology and energy industries. Marsha defends leading businesses against consumer protection-based claims. She has successfully defended dozens of Telephone Consumer Protection Act (TCPA) actions, including class actions, individual actions, arbitrations and prelitigation disputes in jurisdictions across the country. Her practice includes helping clients navigate evolving — and sometimes conflicting — standards for TCPA compliance. She regularly contributes to the TCPA Blog, providing analysis about recent developments regarding the statute.

Anthony F. Jankoski

About the Author: Anthony F. Jankoski

Anthony Jankoski assists clients with various aspects of legal proceedings and trial preparation, including legal research and the drafting of motions and other legal memoranda.

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