Supreme Court to Settle Circuit Split on TCPA Autodialer Prohibitions
Since April, the Second and Sixth Circuits joined the Ninth Circuit and adopted the “broad approach,” splitting the circuits evenly at 3–3. In Duran v. La Boom Disco Inc., the Second Circuit explained that the phrase “using a random or sequential number generator” modified only the term “produce” and did not apply to the term “store” in the key phrase of the TCPA. Thus, according to the “broad approach,” any automated call is a prohibited autodialer if it calls numbers that (1) were generated by humans or computers and stored; or (2) randomly or sequentially produced by a computer.
The Sixth Circuit in Allan v. Pennsylvania Higher Education Assistance Agency followed the Ninth Circuit’s approach, concluding that the autodialer phrase is ambiguous and looking to the rest of the statute for guidance. It found that the TCPA, as a whole, was meant to cover “equipment that made automatic calls from lists of recipients,” regardless of whether the numbers were randomly or sequentially generated. The court explained that “[i]f stored-number systems are not covered, companies could avoid the autodialer ban altogether by transferring numbers from the number generator to a separate storage device and then dialing from that separate storage device.”
In early July, the U.S. Supreme Court granted certiorari in Duguid v. Facebook Inc., a putative class action against Facebook over its alleged practice of sending text messages to non-users even when the person elects to stop receiving notifications. Duguid will provide an opportunity for the Supreme Court to consider whether the TCPA’s definition of automated dialing systems 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,” and may resolve the circuit split.