SCOTUS resolves dispute over what qualifies as an “automatic telephone dialing system” under the TCPA

In Facebook, Inc. v. Duguid, No. 19-511 (U.S. Apr. 1, 2021) the Supreme Court was asked to resolve a dispute over whether a device qualifies as an “automatic telephone dialing system”, or autodialer, under the Telephone Consumer Protection Act (“TCPA”) if it has the capacity “to store or produce telephone numbers to be called” but does not use “a random or sequential number generator.” The Court concluded that to qualify the device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.

The facts are not that important. The consumer sued Facebook under the TCPA for sending him unwanted text messages. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programmed its equipment to send automated text messages. Facebook countered that the TCPA did not apply because the technology it used to text Plaintiff did not use a “random or sequential number generator.” The Ninth Circuit disagreed, holding that if the notification system has the capacity to dial automatically stored numbers it was an autodialer under the TCPA.

To qualify as an “automatic telephone dialing system” under the TCPA, the device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator. The issue, according to the Supreme Court, turned on the whether the clause “using a random or sequential number generator” in the TCPA modifies both of the two verbs that precede it (“store” and “produce”), as Facebook contended, or only the closest one (“produce”), as Plaintiff maintained.

The Court said that the interpretive rule, the “series-qualifier canon”, instructs that a modifier at the end of a series of nouns or verbs applies to the entire series. This meant that the modifying phrase “using a random or sequential number generator” qualifies both antecedent verbs, “store” and “produce.” It made no sense, according to the Court, to apply the modifier to just one part of a cohesive clause where the modifying phrase immediately follows a concise, integrated clause (“store or produce telephone numbers to be called”), which uses the word “or” to connect two verbs that share a common direct object (“telephone numbers to be called”). The comma separating the modifying phrase from the antecedents further suggests that the qualifier applies to all of the antecedents, instead of just the nearest one.

The Court was also persuaded that Facebook’s interpretation matched Congress’s concern in excluding autodialers that did not use a random or sequential number generator. Congress found autodialer technology harmful because they can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity. Plaintiff’s interpretation would encompass any equipment that stores and dials telephone numbers, including virtually all modern cell phones. The Court rejected Plaintiff’s argument that the TCPA should be construed broadly to advance the Act’s privacy-protection goals. But, according to the Court, Congress ultimately chose a precise autodialer definition despite Congress’ general concern about intrusive telemarketing practices. The Ninth Circuit’s decision was reversed and remanded.

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