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Supreme Court Narrows Scope of TCPA in Landmark Autodialer Ruling

In a unanimous decision, the Supreme Court expressly overturned the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, by holding, “to qualify as an ‘automatic telephone dialing system’ under the TCPA, 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.”  See Facebook v. Duguid, 592 U.S.        (2021).  “Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.  This definition excludes equipment like Facebook’s login notification system, which does not use such technology.” 

Justice Sotomayor wasted no time disposing of the standards set forth by the Second, Sixth, and Ninth circuits.  In the first paragraph of the opinion, she wrote: “the question before the Court is whether [the ATDS] definition encompasses equipment that can ‘store’ and dial telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’ It does not.”

The Court narrowly read the statutory language.  Section 227(a)(1) defines an autodialer 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.”  The Court agreed that a common sense reading of this language confirms that number generation is required: the clause “using a random or sequential number generator” modifies both verbs that precede it (“store” and “produce”).  Echoing concerns raised during oral argument, the Court noted the problem with an expansive interpretation: “Duguid’s interpretation of an autodialer would capture virtually all modern cell phones, which have the capacity to ‘store . . . telephone numbers to be called’ and ‘dial such numbers.’”

The opinion should provide relief for many defendants facing potential liability.  The opinion should also give the plaintiffs’ bar pause before filing new actions in light of the standard that now applies across the country.

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Authors

Joshua Briones

Member / Managing Member, Los Angeles Office

Joshua Briones is a commercial litigator who defends consumer class actions for Mintz. He's represented clients in a wide range of industries, including financial services, life sciences, manufacturing, and retail, in cases involving false advertising, unfair trade practices, and other claims.
Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.

Esteban Morales

Associate

Esteban Morales is a Mintz litigator who handles class action defense and financial services litigation for companies of all sizes. He defends clients targeted in class action suits, and the results include dismissals at the pleading stage. Esteban practices in Mintz's Sports Law Practice.

Matthew Novian

Associate

Matthew J. Novian is a Mintz attorney who handles complex commercial litigation, including consumer protection matters. In his active pro bono practice, he counsels clients on matters related to immigration and domestic violence.
Geanette A. Foster is an attorney at Mintz who focuses her practice on legal challenges facing the communications, media, and technology industries. She has advised clients on data privacy issues related to government investigations and prospective mergers and on antitrust matters, including Second Requests and Hart-Scott-Rodino filings.