The Telephone Consumer Protection Act is a major source of consumer privacy litigation against companies that engage in telemarketing. This past year, there was little change in the status quo of what constitutes an autodialer under the Act'which this blog has previously noted has long been a focal point of TCPA litigation; though, as we discuss below, this continued to be an active area of litigation under the law. Federal courts were more receptive to plaintiffs' somewhat expansive interpretations of other TCPA provisions, including those that prohibit sending unsolicited advertisements to fax machines and making telephone solicitations to individuals on a do-not-call list.1 However, the most noteworthy TCPA litigation development of 2024 was the U.S. Supreme Court's decision to grant cert in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., which asks whether, under the Hobbs Act, district courts are bound by the FCC's interpretations of the TCPA.2
This article highlights notable TCPA trends from the past year, with a focus on cases on the issue of what constitutes an ATDS and unsolicited advertisements and solicitation cases, as well as an overview of the Supreme Court's decision to grant cert in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.3 You can stay up to date with all of our writings on this topic and others by subscribing to the WilmerHale Privacy and Cybersecurity Blog.
Automatic Telephone Dialing System (ATDS) Cases
The TCPA generally prohibits using an automatic telephone dialing system ("ATDS") to call or text consumers without their prior express consent. The TCPA defines an ATDS as "equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator."4 Prior to the Supreme Court's 2021 decision in Facebook v. Duguid, plaintiffs suing under the TCPA's private right of action argued for an increasingly expansive understanding of an ATDS. Indeed, the Court in Duguid noted that the plaintiff's proposed interpretation of the term was so expansive as to "capture virtually all modern cell phones."5 The Duguid Court ultimately adopted a narrowing interpretation and held that to be an ATDS, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.6
In 2024, plaintiffs persisted in trying to expand what qualifies as an ATDS without running afoul of Duguid but by and large they were unsuccessful. The Second, Third, and Ninth Circuits all resoundingly rejected plaintiffs' arguments that devices that randomly generated numbers for the purpose of sequencing calls to or selecting from previously-stored phone numbers were ATDSs'defending Duguid's narrowing of the term.
In Perrong v. Montgomery County Democratic Committee, the Third Circuit affirmed dismissal of Perrong's claim alleging that Defendants, who called Perrong to urge him to vote for Democratic political candidates, had unlawfully done so using an ATDS.7 Perrong asserted that the device used to call him was an ATDS because it used a number generator to determine the order in which to call a preexisting list of contacts. The court disagreed, stating that Plaintiff's reliance on footnote 7...
