Update: The Supreme Court on July 9 agreed to take up the issue of what constitutes an “automatic telephone dialing system” under the TCPA. For more details, please see our December 15 alert.
The meaning of “automatic telephone dialing system” (ATDS or “autodialer”) under the Telephone Consumer Protection Act (TCPA) has sharply divided courts, but businesses will soon have clarity. The U.S. Supreme Court on July 9, 2020, granted a petition for a writ of certiorari to resolve this hotly contested issue and the evolving circuit split.
The Federal Communications Commission (FCC) also recently addressed whether certain technology constitutes an autodialer, but it remains to be seen whether the FCC will provide additional guidance. Until the Supreme Court rules, appellate courts will continue to weigh in; for example, the 6th U.S. Circuit Court of Appeals is expected to revisit the issue in a forthcoming opinion.
SCOTUS Will Address Autodialer Definition. The Supreme Court on July 9 agreed to take up the issue of what constitutes an “automatic telephone dialing system” under the TCPA. The TCPA defines ATDS 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.”
As McGuireWoods previously reported, courts are divided on what this means. Some courts have broadly interpreted ATDS to include any equipment that can automatically dial numbers from a list. Other courts have narrowly interpreted ATDS to mean that the equipment must also be capable of performing at least a “storing” or “producing” function using a random or sequential number generator. After the 9th Circuit reiterated its adherence to the broad definition in Duguid v. Facebook, Inc., Facebook petitioned the Supreme Court to decide “[w]hether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” The case will be argued in the October 2020 term.
FCC Resolves Petition Addressing Autodialer Definition. On June 25, 2020, the FCC released a declaratory ruling addressing whether certain peer-to-peer text messaging platforms constitute autodialers subject to the TCPA. According to the petition filed with the FCC, the text messaging platforms in question required a person “to actively and affirmatively manually dial each recipient’s phone number and transmit each message one at a time.” Moreover, recipients had indicated consent “to receive such messages by providing a contact number to which such messages are delivered.” One commenter nevertheless argued that the peer-to-peer text messaging platforms should be considered autodialers because they allowed users to send a high volume of text messages.
The FCC declaratory ruling ultimately clarified that: (1) “the fact that a calling platform or other equipment used to make calls or send texts to a large volume of telephone numbers is not determinative of whether that equipment constitutes an autodialer”; (2) “[i]f a calling platform is not capable of dialing random or sequential numbers without a person actively and affirmatively manually dialing each one, that platform is not an autodialer”; and (3) “even to the extent that calls are made using an autodialer, the TCPA’s restrictions do not apply if the caller or texter obtains the recipient’s prior express consent.” Beyond the narrow issues decided in the declaratory ruling, the FCC indicated that its “interpretation of the autodialer definition remain[s] pending….” It remains to be seen whether the FCC will issue additional declaratory rulings on this question now that the Supreme Court had decided to take it up.
6th Circuit Is Set to Weigh In (Again). While all eyes will be on the Supreme Court, in the meantime, watch for the 6th Circuit’s forthcoming opinion in Susan Allen et al. v. PA Higher Educ. Assistance Agency, Case No. 19-2043, where the court will address the ATDS issue for a second time. The 6th Circuit previously encountered this issue in Gary v. TrueBlue, Inc., Case No. 18-2281. There, the Eastern District of Michigan had adopted a narrow reading of the ATDS. On appeal, the 6th Circuit affirmed the district court, but without extensive analysis. TCPA practitioners (McGuireWoods included) have interpreted the decision to mean that the 6th Circuit has adopted the narrower reading. But these arguments were teed up again in Susan Allen.
In Susan Allen, which predated TrueBlue, the Western District of Michigan followed the 9th Circuit’s approach in finding that the Avaya Proactive Contact system at issue was an ATDS because it had the ability to dial from a list of numbers without human intervention. On appeal, defendants asked the 6th Circuit to instead hold that it is not enough that a device can simply dial numbers from a list without human involvement, but rather that device must also be able to randomly or sequentially generate the telephone numbers to be called. The appeal has been fully briefed, and oral argument took place in late April, so a ruling from the 6th Circuit is expected later this year.