Trim v. Reward Zone USA LLC

Question Presented

Whether the Telephone Consumer Protection Act’s (TCPA’s) autodialer restriction covers automated list-based campaign dialers, or if the TCPA only restricts use of dialers that generate telephone numbers.

Background

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 random or sequential 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 Case

The Plaintiff, Lucine Trim, alleged that the Defendant acquired her phone number from a sales lead vendor and subsequently sent her text messages containing spam advertisements and promotional offers, despite her number being on the National Do-Not-Call Registry.

The District Court correctly observed that the Supreme Court in Duguid required that dialing equipment use a random or sequential number generator in some way in order to meet the TCPA’s definition of an autodialer, and that the Supreme Court did not conclusively resolve that the number generator must be used to generate telephone numbers. However, the District Court went on to state that it was persuaded by other lower court cases that held that a random or sequential number generator must generate telephone numbers. The District Court also rejected the Plaintiff’s argument that the text messages constituted artificial or prerecorded voice messages, which would otherwise have allowed for a TCPA claim even if the court did not find that Reward Zone had used an autodialer. The District Court dismissed the Plaintiff’s alleged Do Not Call Registry violations because she largely recited the law without providing specific facts to support the allegation, but allowed the Plaintiff to revise and resubmit the pleading. The parties stipulated to pause the District Court case while they resolved an appeal to the Ninth Circuit on the autodialer definition issue.

EPIC’s Brief

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.

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