Happy Birthday, No Autodialer: Ninth Circuit Tosses the Facebook Birthday Text Case

Colin Brickman spent years arguing those "Birthday Announcement" texts were sent with an autodialer. In Brickman v. Meta Platforms, Inc., No. 21-16785 (9th Cir. Dec. 21, 2022), the U.S. Court of Appeals for the Ninth Circuit said no and affirmed dismissal with prejudice.

So what was the argument?

The Telephone Consumer Protection Act (TCPA) bans certain calls and texts made with an "automatic telephone dialing system." The statute defines that as equipment with the capacity "to store or produce telephone numbers to be called, using a random or sequential number generator," and to dial them.

Here's the thing ... Brickman didn't claim Facebook made up random phone numbers. People gave Facebook their numbers. His theory was that Facebook used a random or sequential number generator to decide the order in which those numbers were stored and dialed. He pointed to footnote 7 of the Supreme Court's Facebook, Inc. v. Duguid decision, which said an autodialer "might use a random number generator to determine the order in which to pick phone numbers from a preproduced list."

Meta argued that the generator had to actually generate the phone numbers.

What the court decided

The opinion is brief. Judge Gilman, a Sixth Circuit judge sitting by designation, authored the opinion.

While the appeal was pending, another Ninth Circuit panel decided Borden v. eFinancial, LLC. That case held that "an [autodialer] must generate and dial random or sequential telephone numbers." The Brickman panel said Borden "resolves the sole issue in this case."

Brickman tried to wiggle out by saying Borden only dealt with the "produce" part of the definition, not the "store" part. The court said nope. Borden read the whole definition. In either case, the generator had to make telephone numbers.

Read that again. Order-picking from a list of numbers people handed you isn't enough.

The concurrence is the fun part

Judge VanDyke concurred only because Borden boxed him in. He believes that Borden has it wrong.

His analogy: a "wood lathe" in chair-building instructions doesn't mean a lathe that only makes chairs. A "random number generator" is a known tool that can spit out anything, including phone numbers. He also argued Borden makes the word "store" pointless, which undercuts Duguid's own reasoning. And he said the fear that every cell phone becomes an autodialer is overblown, since normal phones don't store numbers in random order to auto-call them.

That's one judge, not the law. But it tells you this fight isn't totally dead.

Why should you care?

Look, if you text people who gave you their numbers, the autodialer claim is very hard to win in the Ninth Circuit after Borden and Brickman.

But don't get cocky:

• Other rules still apply. Prerecorded messages, Do Not Call rules and state mini-TCPA laws don't care about number generators.
• Consent still matters. Obtain it, document it, and respect opt-outs.
• Other circuits can disagree. Check where you're getting sued.

The birthday texts survived. Your compliance program should too.

Read the Ninth Circuit's opinion in Brickman v. Meta Platforms.