EPIC & NCLC to Ninth Circuit: Automated Campaign Calling Without Consent Violates TCPA

September 27, 2022

EPIC and the National Consumer Law Center (NCLC) filed an amicus brief in Trim v. Reward Zone USA LLC, arguing that Reward Zone violated the Telephone Consumer Protection Act (TCPA) if its dialing system used a number generator to mass dial people without consent—even if Reward Zone called telephone numbers from a stored list.

Last year, the Supreme Court ruled in Facebook v. Duguid that the TCPA’s restriction on “automated telephone dialing systems” or autodialers only covered equipment that used a “random or sequential number generator.” Since Duguid, the question of what “random or sequential number generator” means—is it something that generates any number or is it only limited to telephone numbers?—has become hotly contested in TCPA cases. EPIC has filed amicus briefs in several such cases.

Trim and several other plaintiffs sued Reward Zone after receiving text messages containing spam advertisements and promotional offers, despite their phone numbers being on the National Do-Not-Call Registry. The plaintiffs alleged that Reward Zone obtained their phone numbers from a sales lead vendor.

The district court dismissed the plaintiffs’ autodialer claims, stating that although the Duguid decision did not require that a random or sequential number generator be used to create phone numbers, the district court itself was persuaded that interpreting the “random or sequential number generator” language in the TCPA to require actual phone number creation was the best interpretation of the statute.

In their amicus brief, EPIC and NCLC argued that “random or sequential number generator” should be given its plain meaning: code that can generate any type of number. EPIC and NCLC agreed that the scope of the Supreme Court’s holding in Duguid was limited and that the Court did not decide what the phrase “random or sequential number generator” meant. The brief also described, from a technical perspective, what random and sequential number generators are, how they work, how some list-based mass dialers use them to make automated calls, and how such autodialers differ from cellphone and other consumer dialing systems. EPIC often participates as amicus to explain the technology at issue in a case. EPIC also routinely files amicus briefs in Telephone Consumer Protection Act cases.

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