Proposed Federal TCPA Legislation Offers a New and Broad ATDS Definition

On July 12, 2022, Representatives Raja Krishnamoorthi, D-Ill., and Katie Porter, D-Calif. introduced H.R. 8334 in the U.S. House of Representatives, which was referred to the Committee on Energy and Commerce. The bill would amend the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, to, among other things, “prohibit the use of automated telephone equipment to send unsolicited text messages.”

The TCPA presently defines “automatic telephone dialing system” (or “ATDS”) as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator . . . to dial such numbers.”  The law generally prohibits any person from making nonconsensual telemarketing or other types of telephone calls to a cell phone number using an ATDS.

Last year, the Supreme Court narrowly construed the TCPA’s definition of ATDS, finding that the definition did not “encompass equipment that can ‘store’ and dial telephone numbers, [where] the device does not ‘use[] a random or sequential number generator.’” Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 1167 (2021). Justice Sotomayor, writing for the majority, explained “that the phrase ‘using a random or sequential number generator’ follows a comma placed after the phrase ‘store or produce telephone numbers to be called.’” 1170.  Consequently, that “qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents.” Id.  This interpretation effectively became an invitation to Congress to revisit a definition unchanged since 1991.

The sponsors of H.R. 8334 heeded the Supreme Court’s statutory analysis by proposing a revision of the ATDS definition that would expand its application.  The proposed bill would strike the phrase, “using a random or sequential number generator” altogether and insert the phrase, “or sent a text message” to make explicit that texts are within the scope of the statute.  While the proposed bill provides a safe harbor for those who call or text individuals who gave prior consent and were later assigned a different phone number, the sender must have queried the FCC database to ensure the number is still accurately assigned.  Finally, the proposed bill charges the FCC, within 18 months, to issue rules defining the terms “automatically,” “dial,” “send,” and “charged for the call.”

While the prospects for this bill are not known, it is plain that callers that relied upon the Duguid interpretation of ATDS cannot ignore the possibility that Congress may act to revise the statute to address dialing technology in use today.  Certainly, a reboot that reflects the contents of H.R. 8334 would represent a significant expansion of the ATDS definition that could greatly complicate how the TCPA is applied to dialing equipment and reinvigorate the TCPA plaintiff’s bar.

W. Joshua Lattimore

About the Author: W. Joshua Lattimore

Joshua Lattimore supports clients in litigation and dispute resolution.

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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