Those deadline for entities and organizations that want the Supreme Court to adopt a more restrictive definition of the Automated Telephone Dialing System under the Telephone Consumer Protection Act to file their briefs was Friday, and there were seven submitted, including a bipartisan group of 38 state attorneys general, 21 Democrats in Congress, a former chief technology officer at the Federal Communications Commission, and a trio of consumer advocacy groups.
The Supreme Court will hear arguments in Duguid v. Facebook on December 8. The case will, once and for all, end the confusion over how an ATDS is defined under the TCPA. The text of the TCPA reads: an ATDS is defined 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.” The source of the conflict is whether “using a random or sequential number generator” applies to equipment that “stores” or “produces” telephone numbers or applies to equipment that does both.
The Second and Ninth Circuit Courts of Appeal have ruled that an ATDS is defined as technology that has the “capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator.” But the Third, Seventh, and Eleventh Courts of Appeal have issued opposite rulings, determining that technology that does not have the capacity to generate random or sequential numbers does not meet the definition of an automated telephone dialing system under the TCPA.
Admitting that the ATDS definition within the TCPA was not the “model of draftmanship,” the state AGs still argued that the petitioners reading of the definition was “better.” None of the state laws that existed in 1991 when the TCPA was enacted “required an autodialer to use a random or sequential number generator,” the AGs noted, so why would Congress have adopted a definition that was so much more restrictive?
The members of Congress who submitted their brief painted a very bleak picture if the Supreme Court ruled in favor of a more restrictive definition of an ATDS.
” … a narrow reading of the TCPA to exclude dialing from databases and limit application to numbers that were randomly generated would reverse decades of precedent and gives a green light to telemarketers and scammers who will suddenly be free to initiate billions of automated calls to Americans who have a united distain for intrusive robocalls,” they wrote.
