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By: Matthew Foree
The Supreme Court of the United States recently announced that it will consider an important Telephone Consumer Protection Act (“TCPA”) case concerning the problematic statutory definition of “automatic telephone dialing system” (“ATDS”). Information about the case, Facebook, Inc. v. Duguid, can be found here.
As we have reported several times before, the determination as to what constitutes an ATDS has created significant confusion, resulting in a patchwork of inconsistent decisions throughout the country. The definition in the statute, which dates to 1991, provides that an ATDS is “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Among other things, the TCPA prohibits using an ATDS to make calls to a cellular telephone without the consent of the called party. Therefore, whether an ATDS was used in making calls can be determinative of liability. In the Facebook case, the Supreme Court will consider the specific issue of whether the definition of ATDS in the TCPA encompasses any device that can store and automatically dial telephone numbers, even if the device does not use a random or sequential number generator.
The U.S. Circuit Courts of Appeal have interpreted the statutory language inconsistently. Some courts, like the Eleventh Circuit, interpret the language literally with a restricted approach, while others have expanded the definition. For example, in Marks v. Crunch San Diego, LLC, the U.S. Court of Appeals for the Ninth Circuit concluded that the “statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,’ but also includes devices with the capacity to dial stored numbers automatically.” Accordingly, the court read the statute to provide that ATDS means “equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers.” Interestingly, since the Supreme Court granted certiorari, the Sixth Circuit has joined the Ninth Circuit in its interpretation of this language in the Allan v. Pennsylvania Higher Education Assistance Agency case.
Thankfully, this issue will finally be resolved by the Supreme Court’s decision in this matter. Practitioners and their clients are eagerly awaiting the Court’s decision to clarify the definition of ATDS. Facebook’s brief is due to be filed with the Supreme Court by September 4, 2020, and Respondent’s briefing is due on October 16, 2020. A ruling is expected by the summer of 2021. In the meantime, many U.S. District Courts are granting motions to stay pending the resolution of this important decision.
If you have any questions or would like more information, please contact Matt Foree at [email protected].