In its August 31 opinion, the Northern District of California rejected the plaintiff’s “Footnote Seven” argument in a Telephone Consumer Protection Act (TCPA) case, adding to the chorus of courts requiring TCPA plaintiffs to plead use of a random or sequential number generator to state a claim.
Background: Facebook v. Duguid
In the much-anticipated Facebook v. Duguid case on April 1, the Supreme Court issued a surprisingly unanimous decision, holding that an automatic telephone dialing system (ATDS) must have capacity to store or produce a telephone number using a random or sequential number generator. The Court’s bottom line was plain: No random or sequential number generator, no ATDS.
In the months following the opinion, many TCPA plaintiffs’ counsel have pointed to Footnote Seven in an attempt to save TCPA claims against defendants who employ predictive dialers. Footnote Seven reads:
Duguid argues that such a device would necessarily “produce” numbers using the same generator technology, meaning “store or” in § 227(a)(1)(A) is superfluous. “It is no superfluity,” however, for Congress to include both functions in the autodialer definition so as to clarify the domain of prohibited devices. For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time. In any event, even if the storing and producing functions often merge, Congress may have “employed a belt and suspenders approach” in writing the statute.
Courts, however, have not looked favorably on this argument, with courts in the District of South Carolina and Western District of North Carolina rejecting the Footnote Seven argument. Now, we have one more court out of the Ninth Circuit joining this commonsense approach.
The Northern District of California Joins the Chorus
In Tehrani v. Joie de Vivre Hospitality LLC, et al., the plaintiff alleged that he received three “autodialed text messages” in September 2019, and despite earlier attempts to state a TCPA claim, again requested leave from the court to amend his complaint. Specifically, the plaintiff argued that Footnote Seven stands for the proposition that a system that uses a list of preexisting phone numbers can constitute an ATDS. The plaintiff argued that a system that starts with a list of preexisting phone numbers, then generates an index number through a random or sequential number generator, then assigns the generated numbers to the preexisting list of phone numbers, and then selects sets of numbers to dial qualifies as an ATDS under Facebook.
Judge Chen of the Northern District rejected this argument. The court faulted the interpretation of Footnote Seven because it did not apply to generating telephone numbers. The definition of an ATDS requires a system to randomly or sequentially generate telephone numbers and to dial those numbers. Under the plaintiff’s Footnote Seven argument, the telephone system did not dial randomly or sequentially generate telephone numbers.
The court also noted that the plaintiff’s ATDS argument ignored the fact that the Supreme Court’s Facebook decision flatly rejected the Ninth Circuit’s and the Second Circuit’s interpretations of an ATDS in favor of the Seventh and Eleventh circuits’ interpretation. While the Second and Ninth circuits focused on generation of lists, the Seventh and Eleventh circuits focused on generating telephone numbers — a view that the Supreme Court impliedly supported when it reversed the Ninth Circuit’s decision in Marks v. Crunch San Diego LLC.
Finally, the court rejected the plaintiff’s arguments as to legislative history and Footnote Seven. As the Supreme Court noted, even though Congress was concerned about intrusive telemarketing practices when it enacted the TCPA, it does not follow that “it adopted a broad autodialer definition.” And the systems described in Footnote Seven still included technology that generated telephone numbers, not merely lists of telephone numbers. The court cited the growing list of other districts that have rejected similar TCPA plaintiffs’ claims, finding “the result reached by a clear majority of courts is persuasive.”
The Tehrani decision is aligned with other federal courts, which have adopted a commonsensical interpretation of Facebook and acknowledged the decision’s exclusion of predictive dialers from the definition of an ATDS. The clear dictates of the Supreme Court are evident, even in districts viewed as plaintiff friendly.
