On April 13, the Ninth Circuit issued an opinion affirming a district court’s summary judgment order on the grounds that under Borden v. eFinancial, LLC, discussed here, to qualify as an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA) the telephone system must store or produce randomly or sequentially generated telephone numbers, not just any numbers.

In Pascal v. Concentra, Inc., the plaintiff filed a class action lawsuit arising out of a text message that he claimed was sent to him and “3,596 phone numbers that Concentra identified as belonging to physical therapists in California.” The plaintiff sued under the TCPA, claiming that when Concentra uploaded or manually added numbers to its messaging application, Textedly, the application assigned unique, sequential identification numbers to those telephone numbers. Therefore, according to the plaintiff, Textedly used a random or sequential number generator to store telephone numbers within the meaning of the TCPA.

Concentra argued that Textedly did not qualify as an ATDS because Textedly assigned identification numbers to telephone numbers sequentially as they were uploaded to or entered manually into Textedly and they were stored in that order. According to Concentra, Textedly did not change the order of the telephone numbers or determine when any number would be called. The district court granted Concentra’s motion for summary judgment, relying on the Supreme Court’s decision in Facebook, Inc. v. Duguid, which formed the basis for Borden and held that a system does not qualify as an ATDS unless the telephone numbers themselves are randomly or sequentially generated, then dialed. The plaintiff appealed.

The Ninth Circuit affirmed, relying on Borden, which echoed the holding of Facebook, that a system constitutes an ATDS only if it generates random or sequential telephone numbers. “Because Textedly did not store or produce randomly or sequentially generated telephone numbers, Concentra’s text message was not sent to [the plaintiff] via use of an autodialer in violation of the TCPA.”