Do the text messages that Facebook sends to your phone with birthday reminders violate the Telephone Consumer Protection Act (TCPA)? According to the Ninth Circuit in a recent decision, the answer is no because users provided their phone numbers to Facebook and, in order to qualify as an automatic telephone dialing system (ATDS) under the TCPA, the telephone system must randomly or sequentially generate telephone numbers.

In Brickman v. Meta Platforms, Inc., the plaintiff filed a class action claiming the defendant, Meta Platforms, Inc. d/b/a Facebook, violated the TCPA by sending unsolicited “Birthday Announcement” text messages to consumers’ cell phones. The plaintiff sued under the TCPA provision which generally bans calls made to a telephone if the call is made with an ATDS. While the plaintiff acknowledged that the phone numbers were provided to Facebook by the consumers, he argued that a random or sequential number generator was used to determine the order in which the phone numbers were stored and dialed. Facebook argued that in order to qualify as an ATDS, the system must generate the phone numbers in the first instance. The district court agreed and granted Facebook’s motion to dismiss.

The Ninth Circuit affirmed relying heavily on its recent decision in Borden v. eFinancial, LLC, discussed here, holding that a telephone system must randomly or sequentially generate telephone numbers, not just any numbers, to qualify as an ATDS. The appellate court, therefore, held that Facebook did not violate the TCPA because it did not use a system that randomly or sequentially generated the telephone numbers in question.

The plaintiff tried to evade the application of Borden by contending that it addressed the production prong of section 227(a)(1)(A), not the storage prong at issue here. The appellate court found that the Borden holding was not that limited and “clearly controls.” “The [Borden] court [ ] interpreted the definition of an autodialer in its entirety, finding that the text and context of the TCPA ‘make[] clear that the number in ‘number generator’ . . . means a telephone number.’ This is true regardless of whether the numbers are stored or produced — either way, ‘an autodialer must randomly or sequentially generate telephone numbers, not just any number.'”