In a unanimous decision, the U.S. Supreme Court limited the reach of the Telephone Consumer Protection Act (“TCPA”) by narrowing what technology qualifies as an Automatic Telephone Dialing System (“ATDS”).  Among other restrictions, the TCPA prohibits calls to phone numbers using an ATDS without prior express consent.  The TCPA defines an ATDS 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.”

In Facebook v. Duguid, the Court held that the key phrase “using a random or sequential number generator” modifies both “to store” and “to…produce.”  Therefore, automatic dialing technology only qualifies as an ATDS if it has the capacity to store numbers “using a random or sequential number generator” or to produce numbers “using a random or sequential number generator.”

Although the Court repeatedly mentioned “capacity,” it likewise highlighted current use.  Practically then, “equipment that merely stores and dials telephone numbers” (as Justice Sotomayor, writing for the Court, described the plaintiff’s interpretation of an autodialer), no longer necessarily runs afoul of the TCPA’s ATDS prohibitions.  Importantly, as the Court makes clear, the ruling does not affect the TCPA’s prohibition on calls that use “an artificial or prerecorded voice,” such as prerecorded voice messages.

While this ruling will likely curb litigation, clients should remember that they can still face stiff statutory penalties for violations of other TCPA provisions unaffected by the ruling as well as other federal and state statutes that restrict communication.  The Supreme Court’s opinion can be found here.

We will soon be releasing a podcast discussing the ruling and will publish a separate blog post to announce the release.