October 25, 2020

Volume X, Number 299


October 23, 2020

Subscribe to Latest Legal News and Analysis

Facebook and U.S. Government File Supreme Court Briefs Supporting Narrow Interpretation of ATDS Definition

Last Friday, Facebook and the United States government filed briefs in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the growing circuit split over the interpretation of the definition of an ATDS. The Supreme Court granted certiorari in July, agreeing to review a Ninth Circuit decision that had reversed the dismissal of claims targeting Facebook’s login text alerts.

As our regular readers know all too well, the TCPA defines an ATDS as equipment that has the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Facebook and the government’s briefs both argue that the text of the TCPA makes clear that, to qualify as an ATDS subject to the TCPA, equipment must do more than store numbers to be dialed at a later point. “There is no basis in grammar or canons of construction,” Facebook argues, “for applying the adverbial phrase ‘using a random or sequential number generator’ to modify only the verb ‘to produce,’ and not the preceding verb, ‘to store.’” Facebook Brief at 20; see also Government’s Brief at 10. Both briefs also argue that the Ninth Circuit incorrectly concluded that Congress had implicitly adopted a 2015 FCC Order—which had purportedly advocated for a broad reading of the ATDS definition—as the order was under review at the time of its supposed adoption and in any event was eventually overruled. Facebook Brief at 42; Government’s Brief at 31–32. The briefs also touch upon the many constitutional and practical problems that would arise if every device that had the capacity to store and dial numbers was treated as an ATDS for purposes of the TCPA. See Facebook Brief at 49–50; Government’s Brief at 33–34.

Amicus briefs in support of Facebook are due on Friday. We will be monitoring this matter closely and will report on other briefs as they are Facebook SCOTUS Brief filed.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 253



About this Author

Anthony F Jankoski Litigation Faegre Drinker Biddle & Reath Washington, D.C.

Anthony Jankoski* assists clients with various aspects of legal proceedings and trial preparation, including legal research and the drafting of motions and other legal memoranda.

Anthony served as a judicial extern to Chief Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois. He also was a summer associate at Drinker Biddle & Reath LLP, during which time he drafted memoranda on issues in matters involving the Foreign Corrupt Practices Act (FCPA), tax evasion, the False Claims Act, patent infringement and questions regarding due...

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight about the Telephone Consumer Protection Act; and a senior member of the firm's Class Actions Team and interdisciplinary Retail Industry Team.

Committed to civil rights and civic engagement, Michael has spearheaded public interest matters meant to prevent racial discrimination, protect the rights of the disabled and incarcerated, prohibit the use of unverifiable voting systems, and preclude the misuse of our laws and abuse of our civil justice system. One of his most recent public interest matters resulted in a landmark settlement that put an end to decades of discrimination by administrative agencies that had refused to make important information about public benefits programs available in alternative formats that were accessible to the blind and visually impaired. As a result of the settlement, thousands of class members have already requested and received documents in accessible alternative formats.