On December 8, 2020, the Supreme Court heard argument in Facebook, Inc. v. Duguid,1 a case addressing a split among federal circuit courts as to what constitutes an "automatic telephone dialing system"—often referred to as an "autodialer"—under the Telephone Consumer Protection Act (TCPA).2 The Court's decision could significantly reduce the risk of TCPA litigation directed at online platforms and apps with text messaging functionality.
Background
The TCPA generally prohibits calls to cell phones made without some form of consent if the calls are placed using an "automatic telephone dialing system."3 Courts have interpreted "calls" to include text messages.4 The TCPA defines "automatic telephone dialing system" as "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." The statute is invoked routinely by plaintiffs' class action counsel due to its statutory damages of $500-$1,500 per violation.5
In 2015, the Federal Communications Commission (FCC), which implements the TCPA, interpreted this definition broadly to include any device with the potential capacity to automatically dial stored telephone numbers, even if the equipment would have to be modified to add that functionality.6 In ACA International v. FCC, the United States Court of Appeals for the D.C. Circuit held that the FCC's expansive interpretation was arbitrary and capricious, and invalidated that aspect of the 2015 FCC Ruling.7
Since ACA International, courts have struggled to interpret the statutory definition of an "automatic telephone dialing system," and the FCC has failed to clear up the confusion. Some Circuit Courts of Appeals have interpreted the definition to cover any system with the capability of automatically dialing stored numbers, without regard to use of "a random or sequential number generator."8 Other Circuit Courts of Appeals have interpreted the definition to require the capability of using "a random or sequential number generator" to either "store" or "produce" the numbers to be dialed, finding mere storage of numbers insufficient.9
Facebook found itself stuck under the broad autodialer definition in a suit by Noah Duguid arising out of automated account-related text messages Duguid received. Initially, the United States District Court for the Northern District of California dismissed Duguid's claim, concluding that Duguid failed to allege facts showing that Facebook's texting equipment was an automatic telephone dialing system: The court concluded that Plaintiff's allegations could be read to "suggest that Facebook does not dial numbers randomly but rather directly targets selected numbers based on the input of users and when certain logins were attempted," which the court concluded was insufficient to meet the statutory definition.10 On June 13, 2019, the United States Court of Appeals for the Ninth Circuit reversed. Relying on circuit precedent, the court concluded that any system that has "the capacity to 'store numbers to be called' and 'to dial such numbers automatically'" constitutes an automatic telephone...
