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Don't Call Me, Maybe: Defining Auto Dialer Under the TCPA

the screen of a mobile phone with a sticky note on it that says no robo calls


Facebook, Inc. v. Duguid,

No. 19-511,
926 F.3d 1146 (9th Cir. 2019),
cert. granted, 2020 WL 3865252 (U.S. July 9, 2020).

Oral argument scheduled for Dec. 8, 2020.

Issue: Whether the definition of an “automatic telephone dialing system” in the Telephone and Consumer Protection Act of 1991 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.”

Noah Duguid does not use Facebook and never gave the company his cell phone number. Nevertheless, he received multiple text messages from Facebook informing him that an unknown device had accessed his account. After several unsuccessful attempts to stop these texts, Duguid filed a class-action lawsuit against Facebook for violating the Telephone Consumer Protection Act (TCPA).

Enacted in 1991 to protect privacy and prevent harassment, the TCPA bans unsolicited calls made using an automatic telephone dialing system (ATDS, or auto dialer). The statute defines an auto dialer 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.” 47 U.S.C. § 227(a)(1).

The TCPA’s ban on robocalls also applies to text messages, and Duguid alleged that Facebook sent the text messages he received using an auto dialer. In urging dismissal, Facebook argued that the equipment Duguid described in his complaint was not an auto dialer under the TCPA. The district court adopted this argument and dismissed Duguid’s case. Duguid v. Facebook, Inc., No. 15-CV-00985-JST, 2017 WL 635117, at *5 (N.D. Cal. Feb. 16, 2017)rev'd and remanded926 F.3d 1146 (9th Cir. 2019).

On appeal, the primary statutory question concerned the TCPA’s definition of “auto dialer.” Under the interpretation Facebook advanced, a device would be an auto dialer only if it has the ability to call numbers using a “random or sequential number generator.” The Ninth Circuit, however, read the statute to include any device “with the capacity to dial stored numbers automatically,” whether or not the device could also call numbers using a random or sequential number generator. Duguid v. Facebook, Inc., 926 F.3d 1146, 1151 (9th Cir. 2019). Applying this definition, the court held that Duguid had adequately pled a TCPA violation. Id. Facebook sought certiorari.

In its petition, Facebook contends that the Ninth Circuit’s interpretation of the TCPA incorrectly “decoupl[es] the statutory requirement that an ATDS must use ‘a random or sequential number generator’ from the requirement that the device be able to store numbers and dial them[.]” Suppl. Br. for Pet’r 5. The result, per Facebook, is that commonplace devices like smartphones are inappropriately brought under the sweep of the TCPA. Given the TCPA’s statutory damages of $500 per violation, this expansion of what counts as an auto dialer will result in substantially increased liability.

Duguid contends that Facebook advances an excessively narrow definition of “auto dialer,” one that conflicts with the Supreme Court’s recognition of the TCPA’s importance. In Barr v. Am. Ass’n of Pol. Consultants Inc., 140 S. Ct. 2335 (2020), the Court noted that the TCPA represents Congress’s attempt to stop unwanted robocalls and explained the statute’s importance in realizing that goal. Barr, 140 S. Ct. at 2343. Duguid argues that adopting Facebook’s preferred definition would restrict the statute to “a small universe of rapidly obsolescing robocalling machines,” Suppl. Br. for Resp’t 4, and kneecap the statute, contrary to Congress’s aim.

The Supreme Court will not be making its decision in a vacuum. The Second Circuit has followed the Ninth Circuit’s interpretation of auto dialer. Duran v. La Boom Disco, Inc., 955 F.3d 279 (2d Cir. 2020); see also Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). The Third, Seventh, Eleventh, and D.C. Circuits have taken the opposite track. See Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301 (11th Cir. 2020); ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

The FCC is also considering the definition of ATDS under the TCPA. See Fed. Commc’ns Comm’n, Public Notice: Consumer and Governmental Affairs Bureau Seeks Further Comment on Interpretation of the Telephone Consumer Protection Act in Light of the Ninth Circuit’s Marks v. Crunch San Diego, LLC Decision (Oct. 3, 2018), in 33 FCC Rcd. 9429.; Fed. Commc’ns Comm’n, Public Notice: Consumer and Governmental Affairs Bureau Seeks Comment on Interpretation of the Telephone Consumer Protection Act in Light of the D.C. Circuit’s ACA International Decision (May 14, 2018), in 33 FCC Rcd. 4864, 4865–66.  


In 1991, when Congress enacted the TCPA, more than 300,000 solicitors called more than 18 million Americans every day. Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2(3), (6), 105 Stat. 2394, 2394 (1991), (codified as 47 U.S.C. § 227). The states and the federal government continue to field overwhelming numbers of complaints about robocalls. In 2019 alone, the federal government received 3.7 million complaints. Barr v. Am. Ass’n of Pol. Consultants Inc., 140 S. Ct. 2335, 2343 (2020). Despite the TCPA restriction, scammers continue to use robocalls to defraud thousands of individuals and illegally obtain millions of dollars.

Americans have benefited from great technological advances since Congress enacted the TCPA. The definition of “automatic telephone dialing system” affects the scope of the TCPA to protect against unwanted robocalls that use newer technology. If the Supreme Court affirms the Ninth Circuit’s definition of ATDS it will broaden the definition of illegal phone spam to include dialing from a pre-existing customer list. This would protect consumers from unwanted calls and messages. If the Supreme Court instead adopts a narrower definition of ATDS, it could lead to more unwanted calls, more harassment, and greater challenges for consumers to determine which calls are legitimate and which are not.

Ali Naini