April 1, 2021
Stay in the Know
The Supreme Court issued its Facebook v. Duguid Ruling this morning. The case involved the proper interpretation of the TCPA’s definition of an ATDS (autodialer) and addressed two competing interpretations. The “broad” interpretation would have any equipment that stores and dials numbers be considered an autodialer, whereas the “narrow” interpretation required the equipment to have the capability of dialing numbers that were stored or produced using a sequential or random number generator.
Cutting to the chase: The Court unanimously adopted the narrow ATDS interpretation, specifically finding:
“This Court must interpret what Congress wrote, which is that ‘using a random or sequential number generator’ modifies both ‘store’ and ‘produce.’ * * * We hold that a necessary feature of an autodialer under §227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.”
The Court applied various grammatical canons of construction to reach the narrow conclusion. Noble Systems (along with PACE) authored and submitted an amicus brief providing technical reasons why a narrow interpretation was the correct one. In its decision, the Supreme Court cited and referenced our amicus brief, finding that it provided further support for the narrow interpretation and discussed how it rebuts a key counterargument against the broader interpretation. The broader interpretation of the TCPA definition of an autodialer was predicated on the apparent technical impossibility of using a number generator to store a number. The Court noted that this counterargument was not persuasive in light of the technical explanation provided in our brief:
It is true that, as a matter of ordinary parlance, it is odd to say that a piece of equipment “stores” numbers using a random number “generator.” But it is less odd as a technical matter. Indeed, as early as 1988, the U. S. Patent and Trademark Office issued patents for devices that used a random number generator to store numbers to be called later (as opposed to using a number generator for immediate dialing). 7Brief for Professional Association for Customer Engagement et al. as Amici Curiae 15– 21.
This ruling settles a long-standing issue in the TCPA regarding the question of ‘what is an autodialer.’ This ruling helps our clients efficiently dial wireless numbers without consent, as long as they use equipment that does not have the “capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” The ruling also shows that Noble Systems is committed to aiding our clients in every way possible to be effective and successful in their business, from providing cutting-edge technology to our involvement and efforts in industry advocacy.
How did the TCPA’s definition of an ATDS get before the Supreme Court? Watch the Compliance Briefing to see the tangled history of the TCPA and the ATDS, find out how the interpretations vary, and learn how the case got to the Supreme Court and how it’s decision may affect your company’s compliance with TCPA regulations.
Are you ready for the new CFPB Rules? The TCPA definition and restrictions for auto-dialers is only one slice of the compliance pie. Did you know that the CFPB also has new rules taking effect in November 2021? View Part 2 of our CFPB Compliance Series to get an overview of the changes and their operational impacts.
The opinions presented here are those of Karl Koster, and not necessarily those of Noble Systems. The contents should not be construed as legal advice nor as comments reflecting any regulatory position of Noble Systems.