September 19, 2021

Volume XI, Number 262

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September 17, 2021

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Court Soundly REJECTS Footnote 7 In Clearest Argument Yet!!

In Facebook, the Court rejected the Ninth Circuit’s expansive understanding of what constitutes an automatic telephone dialing system or autodialer. But ambitious TCPA lawyers keep trying to chip away at Facebook’s holding. And the thing they rely on is footnote 7. See Tehrani v. Joie De Vivre Hospitality, LLC, Case No. 19-cv-08168-EMC2021 U.S. Dist. LEXIS 165392 (N.D. Cal. August 31, 2021)

I’ll get to what happened in that case. But first, it helps to remember the specifics of Facebook.

Recall, the plaintiffs alleged that Facebook had an autodialer for purposes of the TCPA because it (1) “maintained a database that stored phone numbers and (2) programmed its equipment to send automated text messages to those numbers each time the associated account was accessed by an unrecognized device or web browser.” This was enough, the Facebook plaintiffs argued, because the phrase “using a random or sequential number generator” modified only the verb closest to it, i.e., “produce.”

Nope. The Supreme Court disagreed and explained that to qualify as an “automatic telephone dialing system” a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator. This reading–the Court correctly explained–squares with “conventional rules of grammar”: “when there is a straightforward parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list normally applies to the entire series.

The Facebook opinion also includes footnote 7. That footnote addressed the argument that a device that uses a random number generator to store numbers to be called later “would necessarily ‘produce’ numbers using the same generator technology, meaning ‘store or’ in [section] 227(a)(1)(a) is superfluous.” The Court rejected plaintiffs’ superfluous argument, characterizing Congress’s approach as “belt and suspenders.”

In that same footnote, the Court posited a hypothetical (“for instance”) that:

an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time.

That brings us to Plaintiff Payam Tehrani, who latched onto the Court’s hypothetical and argued that the “number generator” in the autodialer definition “does not actually have to generate phone numbers” but “need only generate an index number which is then assigned to preexisting phone numbers.” The court in Tehrani v. Joie De Vivre Hospitality, LLC persuasively and forcefully rejected that argument.

The entire opinion is worth a careful read, but here are three of the most compelling takeaways:

First, the “‘number generator’ specified in 227(a)(1)(A) implicitly refers back to a telephone number’–i.e.,, the preceding phrase–and not to an index number.”

Second, the Court in Facebook resolved a circuit split that included the Second Circuit’s decision in Duran. That court had held that the “mere fact that the programs ‘store’ lists of numbers is enough.” Since Facebook overruled that decision, the Court had functionally also rejected Mr. Tehrani’s interpretation of Facebook. 

Third, Mr. Tehrani’s argument “makes little sense when one takes into account the harms that that the TCPA was intended to address.” Namely, telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity. But Mr. Tehrani’s interpretation of Footnote 7 does not relate to a “cognizable harm sought to be addressed by Congress” because neither risk is implicated by indexed numbers.

So there it is–another resounding defeat for another footnote 7 argument. We will continue to carefully track these cases.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 257
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About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

303-894-6111
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