On April 1, 2021, the United States Supreme Court unanimously sided with a social media titan, holding that to qualify as an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA), the device “must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.”¹

Today’s holding brings a close to the 3-3 circuit split in which some circuits adopted a restrictive interpretation barring only those calls made through platforms that randomly or sequentially store or generate numbers, while the other circuits interpreted the phrase more broadly, holding that the TCPA covers devices with the capacity to automatically dial telephone numbers from a stored bank, or produce the same from a random or sequential number generator. 

The defendant maintained a platform with an optional security function that allowed users to elect to receive text messages when a third party attempts to log into the account from a new device or browser. The plaintiff claimed he did not sign up for the platform’s services, and thus did not opt into this security feature, but nonetheless received security alerts to his phone number. Plaintiff brought a putative class action against the corporation, alleging that the practice of maintaining a database that stored phone numbers with programming capable of sending automated text messages when an unrecognized device or web browser tries to access the account violates the TCPA.

Plaintiff prevailed in the Ninth Circuit, with the court holding that an autodialer need not be able to use a random or sequential generator to store numbers, but only needs to have the capacity to store the numbers to be called, and to dial the same automatically. The Supreme Court disagreed, finding first that the series-qualifier canon necessitates qualifying both “store” and “produce” with the phrase “using a random or sequential number generator,” producing the most natural reading of 47 U.S.C.A. § 227(a)(1)(A) (definition of an autodialer). Thus, the Court held that Congress’ definition of an autodialer requires that the equipment in question use a random or sequential number generator to effect a TCPA violation. 

Turning to the statutory text, the Court found that the TCPA’s prohibitions target a unique type of telemarketing equipment, capable of dialing emergency lines randomly or tying up all sequentially numbered lines at a single entity. Thus, expanding the definition of an autodialer to encompass equipment that only stores and dials the numbers held would be “tak[ing] a chainsaw to these nuanced problems when Congress meant to use a scalpel.” Finally, the Court addressed the defendant’s claim that accepting the limited interpretation of an ATDS would “unleash” a “torrent of robocalls,” responding succinctly that Congress’ chosen text cannot be disregarded without justification, and that the existence of additional limiting language within the TCPA will prevent a later onslaught of unlawful calls. 

With this holding, an ATDS under the TCPA must be capable of using a random or sequential number generator to either store or produce phone numbers to be called. While this is a significant decision, it is not the end of the TCPA. We believe that Plaintiffs’ attorneys will now turn their attention to prerecorded messages and alleged violations of the Do Not Call registry, so companies must remain diligent to avoid exposure.

1. No. 19-511 (Apr. 1, 2021); Supreme Court to settle circuit split on TCPA definition of ‘automatic telephone dialing system,’ Dentons Client Alert, July 21, 2020