Whether the Telephone Consumer Protection Act’s autodialer definition is limited to equipment that use a random or sequential number generator to generate telephone numbers.
One of the main provisions of the Telephone Consumer Protection Act (TCPA) protects Americans from unwanted calls delivered through an automatic telephone dialing system (or autodialer). An autodialer is defined in the TCPA as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers.”
For decades, courts and the FCC interpreted the autodialer definition as including mass dialers that automatically dialed stored lists of telephone numbers. After the D.C. Circuit struck down the FCC’s autodialer definition for inconsistency, TCPA defendants began to argue that the autodialer definition required use of a random or sequential number generator. A circuit split evolved, with the Ninth Circuit siding with consumers and adopting a broad interpretation of the autodialer definition that included the most pernicious mass dialing systems.
In April 2021, the U.S. Supreme Court decided in Facebook v. Duguid that an autodialer must either use a random or sequential number generator to store telephone numbers to be called or use a number generator to produce the telephone numbers to be called. The opinion rested primarily on the grammatical structure of the autodialer definition.
Since Duguid, many TCPA defendants have argued that the autodialer definition requires that the random or sequential number generator be used to generate telephone numbers. But the Duguid opinion itself never adopts this position, nor could it, because that was not the question presented in the case, nor was the issue fully briefed. To the extent that the Duguid opinion opines on the proper interpretation of “random or sequential telephone number generator,” it is internally inconsistent, citing legislative history and technical examples that support both sides of the argument.
The plaintiff in the case, David Borden, filled out a form on the Progressive website to receive an insurance quote. Under one of the form’s submission buttons was a clause in tiny, light print that stated that Borden also agreed to receive text messages from eFinancial. After receiving six unsolicited text messages, Borden sued under the TCPA. He alleged that eFinancial used an autodialer to send him and others autodialed texts messages without their consent.
After the Duguid decision, Borden amended his complaint to allege that eFinancial’s dialer used a sequential number generator to store and produce the phone numbers in a particular order. eFinancial filed a motion to dismiss, arguing that Duguid narrowed the autodialer definition to only equipment that generates random or sequential telephone numbers. eFinancial further argued that, because Borden supplied his telephone number through an online form, and eFinancial did not generate it, Borden had no claim against eFinancial. The district court agreed with eFinancial and dismissed the case. Borden appealed to the Ninth Circuit.
EPIC filed an amicus brief arguing that callers who use certain mass dialing systems without consent violate the TCPA even after Duguid. EPIC pointed to the plain language of the statute, which does not require that the telephone numbers be generated by a number generator. EPIC also described, from a technical perspective, what random and sequential number generators are and how they work in automated mass dialers. EPIC explained that, without number generator technology, mass dialing systems could not automatically call large quantities of telephone numbers in a short amount of time with minimal human intervention.
United States Court of Appeals for the Ninth Circuit (No. 21-35746)