April 2, 2021
TCPA Defendants Defeat Class Certification, Novel Autodialer Arguments; Lose Supreme Court Bid (April 1, 2022)
On April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved a circuit split regarding the meaning of “automatic telephone dialing system” (autodialer or ATDS) under the Telephone Consumer Protection Act (TCPA). In a decision authored by Justice Sonia Sotomayor, the court adopted the narrow, pro-defendant definition of autodialer.
Here are five key takeaways from the Supreme Court’s decision.
1. To qualify as an autodialer, equipment must use a random or sequential number generator. The TCPA defines “automatic telephone dialing system” as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers. The question before the court was whether that definition encompasses equipment that can simply store and dial numbers (i.e., the “broad” approach), or whether the equipment must also use a random or sequential number generator (i.e., the “narrow” approach). After analyzing the statutory language according to conventional rules of grammar and punctuation, the court held that the phrase “using a random or sequential number generator” modifies both “store” and “produce.” Thus, to qualify as an autodialer, equipment must have the capacity either (a) to store telephone numbers using a random or sequential number generator, or (b) to produce telephone numbers using a random or sequential number generator. Put simply, if a device does not use a random or sequential number generator, it is not an autodialer.
2. The judgment was unanimous, with a separate concurring opinion authored by Justice Alito. Although Justice Samuel Alito agreed with the majority decision and “much” of the court’s analysis, he wrote separately to emphasize that canons of statutory construction, such as those used in the majority decision, are not “rigid rules.” He explained that statutory construction should not be “a series of if-then computations.” Rather, canons of construction are an attempt to identify how “a reasonable reader ... would have understood the text at the time it was issued.” Thus, while potentially relevant to future statutory construction cases, the concurring opinion in no way undermines the reasoning of the majority.
3. A cell phone is not an autodialer because the TCPA is a “scalpel” not a “chainsaw.” The majority reasoned that the “statutory context” confirms its narrow interpretation. The court explained that the TCPA’s restrictions on the use of autodialers “target a unique type of telemarketing equipment.” However, the plaintiff’s proposed broad definition “would take a chainsaw to these nuanced problems when Congress meant to use a scalpel” because under the plaintiff’s interpretation, virtually all modern cell phones would be considered autodialers. Though the plaintiff argued that cell phones are not autodialers because they require “human intervention,” the court declared that all devices require some human intervention and “decline[d] to interpret the TCPA as requiring such a difficult line-drawing exercise around how much automation is too much.”
4. The Supreme Court’s ruling will not “unleash” a “torrent of robocalls.” The court rejected the plaintiff’s argument that adopting a narrow definition would open the floodgates to nuisance calls. As the court explained, the TCPA separately prohibits calls using an artificial or prerecorded voice. The TCPA also prohibits telemarketing calls placed to phone numbers registered on the do-not-call list. The Duguid decision does not affect those prohibitions. Regardless, the court indicated that if the autodialer definition is indeed too narrow, that is an issue for Congress to address, not the court.
5. The Supreme Court did not resolve whether the TCPA reaches text messages. The Duguid case concerned login verification text messages Facebook sent to the plaintiff. As McGuireWoods reported in October and December 2020, an amicus brief filed in the case argued that the TCPA does not reach text messages and Justice Clarence Thomas questioned the TCPA’s applicability to text messages at oral argument. The court, however, declined to address the issue head-on since neither party had raised it. Rather, the court “assume[d]” the TCPA reached text messages “without considering or resolving that issue.”
The decision in Duguid is a victory not only for Facebook, but for all businesses affected by the TCPA’s autodialer rule. Nevertheless, it remains to be seen how courts will interpret the Duguid decision and whether Congress will amend the TCPA to expand the autodialer definition. Accordingly, businesses should consult with TCPA counsel before making changes to their compliance programs.
“The One About Spam: CAN-SPAM and TCPA,” Episode 2, Season 4 of our “Frenemies” video podcast series on privacy regulations, featuring Amy Gilbert and Sarah Zielinski.