Update: The Supreme Court on July 9 agreed to take up the issue of what
constitutes an “automatic telephone dialing system” under the TCPA. For
more details, please see our
December 15 alert.
The meaning of “automatic telephone dialing system” (ATDS or “autodialer”)
under the Telephone Consumer Protection Act (TCPA) has sharply divided
courts, but businesses will soon have clarity. The U.S. Supreme Court on
July 9, 2020, granted a petition for a writ of certiorari to resolve this
hotly contested issue and the evolving circuit split.
The Federal Communications Commission (FCC) also recently addressed whether
certain technology constitutes an autodialer, but it remains to be seen
whether the FCC will provide additional guidance. Until the Supreme Court
rules, appellate courts will continue to weigh in; for example, the 6th
U.S. Circuit Court of Appeals is expected to revisit the issue in a
SCOTUS Will Address Autodialer Definition.
The Supreme Court on July 9 agreed to take up the issue of what constitutes
an “automatic telephone dialing system” under the TCPA. The TCPA defines
ATDS as “equipment which has the capacity — to store or produce telephone
numbers to be called, using a random or sequential number generator; and to
dial such numbers.”
As McGuireWoods previously
reported, courts are divided on what this means. Some courts have broadly
interpreted ATDS to include any equipment that can automatically dial
numbers from a list. Other courts have narrowly interpreted ATDS to mean
that the equipment must also be capable of performing at least a “storing”
or “producing” function using a random or sequential number generator.
After the 9th Circuit reiterated its adherence to the broad definition in
Duguid v. Facebook, Inc.,
the Supreme Court to decide “[w]hether 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.’” The case will be argued in the October 2020 term.
FCC Resolves Petition Addressing Autodialer Definition.
On June 25, 2020, the FCC released a
addressing whether certain peer-to-peer text messaging platforms constitute
autodialers subject to the TCPA. According to the petition filed with the
FCC, the text messaging platforms in question required a person “to
actively and affirmatively manually dial each recipient’s phone number and
transmit each message one at a time.” Moreover, recipients had indicated
consent “to receive such messages by providing a contact
number to which such messages are delivered.” One commenter nevertheless
argued that the peer-to-peer text messaging platforms should be considered
autodialers because they allowed users to send a high volume of text
FCC declaratory ruling ultimately clarified that: (1) “the fact that a
calling platform or other equipment used to make calls or send texts to a
large volume of telephone numbers is not determinative of whether that
equipment constitutes an autodialer”; (2) “[i]f a calling platform is not
capable of dialing random or sequential numbers without a person actively
and affirmatively manually dialing each one, that platform is not an
autodialer”; and (3) “even to the extent that calls are made using an
autodialer, the TCPA’s restrictions do not apply if the caller or texter
obtains the recipient’s prior express consent.” Beyond
the narrow issues decided in the declaratory ruling, the FCC indicated that
its “interpretation of the autodialer definition remain[s] pending....” It
remains to be seen whether the FCC will issue additional declaratory
rulings on this question now that the Supreme Court had decided to take it
6th Circuit Is Set to Weigh In (Again). While all eyes will be on the Supreme Court, in the meantime, watch for
the 6th Circuit’s forthcoming opinion in Susan Allen et al. v. PA Higher Educ. Assistance Agency, Case No.
19-2043, where the court will address the ATDS issue for a second time. The 6th Circuit previously encountered this issue in Gary v. TrueBlue, Inc., Case No. 18-2281. There, the Eastern
District of Michigan had adopted a narrow reading of the ATDS. On appeal,
the 6th Circuit affirmed the district court, but without extensive
analysis. TCPA practitioners (McGuireWoods included) have interpreted the decision to mean that the 6th Circuit has adopted
the narrower reading. But these arguments were teed up again in Susan Allen.
In Susan Allen, which predated TrueBlue, the Western
District of Michigan followed the 9th Circuit’s approach in finding that
the Avaya Proactive Contact system at issue was an ATDS because it had the
ability to dial from a list of numbers without human intervention. On
appeal, defendants asked the 6th Circuit to instead hold that it is not
enough that a device can simply dial numbers from a list without human
involvement, but rather that device must also be able to randomly or
sequentially generate the telephone numbers to be called. The appeal has
been fully briefed, and oral argument took place in late April, so a ruling
from the 6th Circuit is expected later this year.