The Telephone Consumer Protection Act (TCPA) was passed in 1991 and is known by many as the law that created the “do-not-call” rules. The statute includes a number of restrictions related to telephone, text, and fact solicitations, including a prohibition against what is colloquially known as “autodialing” and “robocalls,” and it creates a private right of action in the event of a violation, providing for the recovery of $500 for each violation of actual monetary loss (whichever is greater), an injunction, or both.

The question before the Supreme Court now, in Facebook, Inc. v. Noah Duguid, et al. (No. 19-511), is: What exactly is autodialing? Or rather, what is “automatic telephone dialing system (ATDS)” (which is a defined term in the TCPA)?

Does autodialing encompass any device that can store and automatically dial phone numbers? Or does autodialing require the use of a random or sequential number generator?

The statute defines 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.” See 47 U.S.C. § 227(a)(1). The TCPS provides the following prohibitions with respect to the use of ATDS:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—(i) to any emergency telephone line (including any “911” line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency); (ii) to the telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States.

[Note: Just a few months ago, on July 6, 2020, the Supreme Court issued a decision in a case that challenged the constitutionality of the TCPA on first amendment grounds. The basis of the challenge was a 2015 amendment to the TCPA which permitted calls that relate to the collection of debts guaranteed by the U.S. government. The majority found that the restriction was subject to strict scrutiny and was an unconstitutional content-based speaker restriction. But rather than find the entire statute unconstitutional, the Court severed the government debt collection exception, leaving the rest of the statute fully operative.]

So getting back to the case at hand, the question is: does “using a random or sequential number generator” modify (1) “produce” and “stored” or (2) just “produce”? Circuit courts across the country have split over this question. Most importantly to the case at hand, the Ninth Circuit found that “using a random or sequential number generator” modified only “produce.” Thus, according to the Ninth Circuit, the TCPA’s prohibition on using autodialers does not require use of a random or sequential number generator.

Facebook filed its brief last month arguing that to qualify as an ATDS the equipment must include use of a random or sequential number generator. A number of organizations, and the US government, filed amicus briefs supporting Facebook’s position. Duguid filed his brief earlier this month, urging the Court to affirm the Ninth Circuit’s judgment, finding that any automated dialing of a stored number would constitute an ATDS.

The Supreme Court is slated to hear oral arguments on December 8, 2020.