Earlier today, the Supreme Court of the United States accepted Facebook, Inc.’s petition to review one of the biggest questions in consumer protection litigation right now: what type of calling platform is an “autodialer” under the Telephone Consumer Protection Act (TCPA)?
The TCPA regulates calls made using an “automatic telephone dialing system,” or an ATDS or autodialer for short. The definition is ambiguous, and famously so:
The term “automatic telephone dialing system” means 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.
The definition is so ambiguous that it has generated a deep circuit split within the federal courts. The Third, Eleventh, and Seventh Circuits have determined that a platform must generate phone numbers in order to be considered an ATDS, and the Second and Ninth Circuits determined that a platform can be an ATDS as long it merely stores phone numbers to be called later. The split has left companies scrambling to determine whether the devices they use are autodialers and, in some cases, are forced to examine different compliance programs depending on the circuit(s) in which they conduct business.
Facebook’s petition was filed in October 2019 and challenges two aspects of the TCPA: (1) whether an exemption for calls made to collect a debt owed or guaranteed to the United States is a violation of the First Amendment and (2) the Ninth’s Circuit’s “counter-textual” interpretation of the ATDS definition. Since the Barr v. American Association of Political Consultants, Inc. opinion was issued on Monday addressing Facebook’s first challenge, the Supreme Court opted to take up Facebook’s second challenge only. The question presented is:
Whether 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.”
Facebook argues that the answer to this question is no, because, otherwise, any call or text made from a modern smartphone can be considered a violation of the TCPA.
The Supreme Court’s decision to review the ATDS definition means that companies can expect a final, controlling interpretation of the definition in the next year. It is unclear where the Supreme Court will land on this issue, but the Federal Communications Commission (FCC), the federal agency that enforces the TCPA, issued a declaratory ruling on June 25, 2020, indicating that whether a calling platform is an “autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention.” So it appears that the FCC has begun backtracking from its previous, broad interpretation of the ATDS definition.