State Attorneys General Ask Supreme Court for Broader Definition of Autodialer

Attorneys general from thirty-seven states and Washington, D.C. filed a Supreme Court amicus brief asking the justices to expand the TCPA’s definition of an autodialer in connection with Facebook’s attempts to evade a class action lawsuit over unwanted security text messages.

In the amicus brief, filed on Oct. 23, 2020 in support of lead plaintiff Noah Duguid, the state attorneys general contend that the current definition of an autodialer under the Telephone Consumer Protection Act is “hardly a model of clarity” and point out that it has been subject to various interpretations.

The appeal to the Supreme Court arises from a proposed class action filed in 2015. In the lawsuit, Duguid alleged he received several security alerts from Facebook sent by text message using an autodialer, or automatic telephone dialing system (ATDS), despite having never been a Facebook user. The Ninth Circuit Court of Appeals overturned the district court’s order granting Facebook’s motion to dismiss, and Facebook filed a petition for writ of certiorari in October 2019.

The states argue that the TCPA’s definition of an autodialer should be defined more broadly to not “hamper State efforts to enforce the TCPA and to protect consumers from illegal calls.” As argued in the amicus brief, the statute’s definition of an autodialer should be construed to include all kinds of autodialer devices — including those that have the capability to store and dial numbers by using either a random number generator or a sequential one.

Facebook claimed that imposing TCPA liability for ‘the kind of sensible, but inherently fallible, business practices at issue here would go beyond the scope of Congress’s concerns when it passed the TCPA.”

However, the state attorneys general argued that Facebook’s practices were not “sensible.” Rather, they argued that sending text messages to cellphone numbers that are not associated with Facebook accounts constituted the kinds of “abusive” robocall practices the states attempt to subvert through enforcement efforts.

“It is well-established that individuals have an expectation of privacy in their cell phones,” the brief states.

States Say They ‘Field a Constant Barrage of Complaints About Robocalls’

The states maintain that they are at the forefront in the effort to combat abusive robocaller practices and frequently engage in litigation to prevent illegal robocalls, invoking their authority under the TCPA. The amicus brief states, “[w]hile States use the TCPA as a critical tool to protect consumers from illegal and fraudulent calls, Facebook threatens to undermine that effort.”

In the amicus brief, the states argue that Facebook’s argument doesn’t actually concern protecting the communication habits of college students. The states assert that the social media conglomerate is attempting to “update” the TCPA through the court system.

According to the brief, Facebook’s narrow interpretation of the TCPA’s definition of an autodialer to only include those that use a random or sequential number generator would impede efforts at state level to combat robocalling and allow robocallers to circumvent the statute.

What Is the TCPA’s Definition of an Autodialer?

Under the TCPA, an autodialer, or ATDS is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

Under the TCPA, businesses are prohibited from using these devices to make calls or send texts to cell phones without the recipient’s prior express consent. Forty-one states and Washington, D.C. also have laws on the books that restrict the use of autodialers in an effort to protect consumers from the invasion of privacy and annoyance caused by robocallers. Both the FTC and state attorney generals may enforce telemarketing abuses under the TCPA and Telemarketing and Consumer Fraud and Abuse Prevention Act.

The issue raised in the amicus brief concerns the vagueness of the language in the statute and whether the phrase “using a random or sequential number generator” only modifies the verb “produce” and not “store.”

The states assert that it is a logical interpretation that the participle phrase only modifies the word “produce” because “A number generator after all, produces numbers.”

In contrast, Facebook argues that that in order to qualify as an autodialer under the statute, the number generator would also have to “store” the numbers it dials.

Citing to a Sixth Circuit case, the brief states, “All told, lower court judges faithfully applying textualist methods of interpretation ‘have tried to fashion a plain text reading from these words’ but have unanimously agreed that each possible interpretation ‘has its problems’.”

Regardless of how the provision were interpreted, the states argue that Facebook’s argument would be rendered “superfluous,” unless it had prior express consent to send the texts.

The Facebook Autodialer Lawsuit is Facebook Inc. v. Duguid, Case No.19-511, in the United States Supreme Court.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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This article is not legal advice. It is presented
for informational purposes only.