Facebook, Inc. v. Duguid (2021)

The short version

The Supreme Court significantly narrowed the definition of what constitutes an "automatic telephone dialing system," or autodialer, under the Telephone Consumer Protection Act (TCPA). To count as an autodialer, equipment must have the capacity to either store telephone numbers using a random or sequential number generator, or produce telephone numbers using a random or sequential number generator. Equipment that simply stores a list of numbers and dials them automatically is not an autodialer for that reason alone.

Background

The TCPA, at 47 U.S.C. § 227(a)(1), defines an autodialer as equipment with the capacity "to store or produce telephone numbers to be called, using a random or sequential number generator," and to dial those numbers. The statute restricts certain calls made with an autodialer, including many calls to cell phones without the called party's prior express consent.

Facebook offered a security feature that sent a text message whenever someone tried to log in to an account from a new device or browser. Noah Duguid received these text messages, even though he had never created a Facebook account himself. He tried to stop them without success and filed a putative class action, arguing that Facebook's system was an autodialer because it stored phone numbers and sent automated texts to them.

The Ninth Circuit agreed with Duguid. It read the statute to cover equipment that can dial stored numbers automatically. Other federal appeals courts had read the definition more narrowly, so the Supreme Court took up the case to resolve the circuit split.

What the Court decided

The Court reversed the Ninth Circuit. Justice Sotomayor wrote the opinion of the Court, joined by seven other justices. Justice Alito concurred in the judgment.

The case turned on grammar. The question before the Court was whether the phrase "using a random or sequential number generator" modifies both verbs that precede it ("store" and "produce") or only the nearest one ("produce"). The Court ruled that the phrase modifies both. The opinion said 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."

Because Facebook's notification feature did not make use of a random or sequential number generator to store or produce numbers to be called, it was not an autodialer under the statute.

Why it matters

• Fewer autodialer claims. Before this decision, many TCPA cases about texts and calls to cell phones relied on a broad reading of "autodialer." After Duguid, plaintiffs relying on the autodialer provision must show the equipment had random or sequential number generation capacity.
• Other parts of the TCPA are unaffected. The decision concerns only the autodialer definition. Calls that use an artificial or prerecorded voice are still restricted by § 227(b) regardless of whether an autodialer is used, and the Do Not Call rules under § 227(c) don't depend on the type of dialing equipment.
• State laws may differ. Some states have their own telemarketing statutes with different equipment definitions. Our guide to state telemarketing laws covers those individually.