On April 1, 2021, the Supreme Court issued its long-awaited opinion in the Facebook, Inc. v. Duguid et al. Case, No. 19-511 (April 1, 2021). Facebook was about the question of which technology represents an “automatic telephone dialing system” (“ATDS”) within the meaning of the Telephone Consumer Protection Act, 47 USC §227 ff. (“TCPA”). The unanimous decision of the Supreme Court is a huge win for companies that communicate with their consumers via phone / SMS.
The case arises from plaintiff Noah Duguid’s allegations that he received text messages from Facebook in 2014 to inform him that someone tried to access his Facebook account using an unknown browser. Unfortunately, the plaintiff did not have a Facebook account, nor had he ever given his phone number to Facebook or otherwise consented to receive calls from Facebook. The plaintiff filed an alleged class action lawsuit alleging Facebook violated the TCPA by dialing his phone number with an ATDS. However, the “ATDS” in question only had the ability to dial telephone numbers from a stored list. Facebook argued that the dialing system used, since it cannot generate random or sequential numbers, does not meet the definition of an ATDS and therefore does not violate the TCPA.
The TCPA defines an ATDS as “a device that has the capacity (A) to store or produce telephone numbers to be called or called using a random or sequence number generator; and (B) to choose such numbers. “47 USC § 227 (a) (1). The question ultimately turned around whether the phrase “using a random or sequence number generator” modifies both the words “store” and “produce”. After a long discussion of “the rules of the last antecedent”, the legal context, the intent of Congress and the historical circumstances, the court finally concluded that a device “must have the ability to either store a telephone number in order to be able to use it qualify as ATDS using a random or sequence generator, or generating a phone number using a random or sequence generator. “
This is big news for callers as most modern dialing systems do not generate random and sequential numbers and instead only place calls from a preprogrammed list to consumers. Callers should be aware that the court’s decision will not affect the TCPA’s restrictions on making calls with a recorded / artificial voice or the TCPA’s rules on not calling.
Although the Facebook ruling of the Court of Justice may ultimately be optional in many future TCPA cases, it is unlikely that this will mean the end of the TCPA. We anticipate that there will continue to be litigation, particularly regarding recorded / artificial voice calls and the no-call rules. However, we also anticipate that the next wave of TCPA litigation will focus on the issue of an autodialer’s underlying “ability” to randomly and sequentially generate numbers even when that is not actually used, potentially leading to extensive expert investigation Location requires elective equipment in question and invasive written detection.