The Plaintiff in Facebook, Inc. v. Duguid has recently filed its merits brief on this issue of whether the Telephone Consumer Protection Act’s definition of “automatic telephone dialing system,” 47 U.S.C. § 227(a)(1), encompasses a device that can store and automatically dial telephone numbers without using a random or sequential number generator.

The Supreme Court case comes after the Ninth Circuit reversed the dismissal of claims targeting Facebook’s login text alerts.  It is anticipated that the Court will resolve the circuit split over the TCPA’s definition of an “automated telephone dialing system.”  The TCPA defines an ATDS as equipment that has the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  47 U.S.C. § 227(a)(1).

Mr. Duguid, the Respondent, argues that:

(i)        The most straightforward reading is that “using a random or sequential number generator” describes how ATDS equipment “produces” numbers, not how it “stores” them;

(ii)       Ordinary and technical meanings of “random number generator” and “sequential number generator” refer to means of producing numbers;

(iii)      The correct grammatical reading of the definition aligns with the semantic content of the words;

(iv)      Facebook’s reading makes the words store or surplusage;

(v)        Applying the prohibition on unwanted robocalls to autodialers that do not use random or sequential number generators is consistent with the TCPA’s structure, manifest purposes, and Context;

(vi)      Congress drafted the robocalling prohibition to carry out the statute’s broad privacy protection goals;

(vii)     Prohibiting robocalls to stored numbers accords with the statutory text’s focus on automatically dialed calls;

(viii)    Limiting ATDSs to systems that store numbers using a number generator would have illogical and anomalous consequences;

(ix)      The TCPA’s historical context supports its application to systems that automatically dial stored numbers;

(x)        Facebook’s reading of the statute would unleash the torrent of robocalls Congress wrote the TCPA to stop; and

(xi)      Correctly applying the TCPA to autodialers that make robocalls to stored numbers poses no threat to ordinary smartphone users

In short, Respondent argues that Facebook’s attempt to limit the TCPA’s application to autodialers that use number generators misreads the statute’s words and all other indicia of Congress’s intent.  “To further, not hinder, the TCPA’s manifest purpose, the Court should hold it applicable to systems that automatically dial stored numbers and affirm the judgment of the court of appeals,” argues Respondent.

Facebook previously filed its brief, arguing that the text of the TCPA makes clear that, to qualify as an ATDS subject to the TCPA, equipment must do more than store numbers to be dialed at a later point.  Facebook also argues that the Ninth Circuit incorrectly concluded that Congress had implicitly adopted the infamous 2015 FCC Order that purportedly advocated for a broad reading of the ATDS definition.

Richard B. Newman is a TCPA defense attorney at Hinch Newman LLP and represents  advertisers, marketers, lead generators and intermediary service providers in digital media  matters.  Follow FTC defense attorneys on National Law Review and on Twitter @ FTC defense attorney.

Informational purposes only. Not legal advice. May be considered attorney advertising.