In recent years, courts nationwide have grappled with the statutory definition of an Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). While many courts have adhered to the statutory text by requiring a telephone to be capable of random or sequential number generation to qualify as an ATDS, other courts have taken a broader approach by finding that storage of telephone numbers is enough. Now, we may be getting closer to a definitive answer, as Facebook has asked the Supreme Court of the United States to weigh in on the question of exactly what constitutes an ATDS.

The question of what qualifies as an ATDS has been the subject of much discussion in recent years. In 2015, the Federal Communications Commission continued its history of interpreting the TCPA through an order that dramatically expanded the definition of an ATDS. In response, in 2018, the D.C. Circuit Court of Appeals struck down that order after determining that the FCC’s definition of an ATDS could be interpreted to include smartphones, thus making “nearly every American … a TCPA-violator-in-waiting, if not a violator-in-fact.” ACA International v. FCC. In the wake of ACA, the Ninth Circuit waded in with its now (in)famous ruling in Marks v. Crunch San Diego, LLC. In Marks, the Ninth Circuit found that storage of telephone numbers, without random or sequential number generation, was enough. In doing so, the Ninth Circuit introduced some of the very same uncertainty into the law that the court in ACA sought to resolve.

Enter Facebook. Earlier this year, in Duguid v. Facebook, Inc., Facebook argued that the Ninth Circuit’s definition of an autodialer was too broad. In defending a lawsuit in which the plaintiff alleged that Facebook sent him unsolicited security alerts via text message from an ATDS, Facebook argued that its equipment was not an ATDS because it stores numbers only to be called “reflexively” in response to “outside stimuli” such as a suspicious log-in. Facebook’s equipment, it argued, does not “use a random or sequential number generator” and thus should not be considered an ATDS. Without narrowing the definition to exclude equipment which only stores numbers for “responsive” calling, Facebook warns that once again all smartphones will be considered autodialers and all of us will be violating the TCPA any time we send an unsolicited text message. The Ninth Circuit was unimpressed with Facebook’s argument, and ruled that the plaintiff’s claims could go forward.

Not one to take defeat lightly, Facebook recently petitioned the Supreme Court, asking the Court to weigh in. In addition to a very interesting First Amendment question (a topic for another post), Facebook has specifically asked the Supreme Court to decide “[w]hether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’”

Anyone practicing or operating in this area should follow the developments of this case. The question of whether equipment is or is not an ATDS is frequently crucial to any TCPA claim. Only time will tell if the justices will see the need to resolve this particular question, but Facebook’s petition alleges a conflict between the Ninth Circuit’s decision and opinions from the Third and D.C. circuits. Settling a circuit split is often a strong justification for the Supreme Court to take a case.

Troutman Sanders will continue to monitor developments in this area.