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August 06, 2020

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Supreme Court Agrees To Review ATDS Definition

Earlier today, the United States Supreme Court granted the petition for certiorari in which Facebook had asked the Court to resolve the growing circuit split regarding the definition of an ATDS. The Court limited its review to the second question presented, namely “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” This comes hot on the heels of the Court’s ruling earlier this week on the constitutionality and severability of the government-debt exception to the statute’s restrictions on automated telephone equipment.

Facebook filed its petition in October 2019, asking the Court to weigh in on, among other things, the interpretation of the TCPA’s definition of an ATDS. Following the Court’s decision in Barr v. AAPC on Monday, Facebook submitted a supplemental brief arguing that its question about the ATDS definition is even more important now than when it initially filed its petition.  Specifically, Facebook argued that, absent clarification of the ATDS definition, callers could face liability in the Ninth Circuit for “innocuous” communications that would not be subject to liability elsewhere. Facebook also noted that recent decisions from the Second, Seventh, and Eleventh Circuits had only contributed to the circuit split and ensuing confusion.

For his part, the plaintiff in Duguid filed his own supplemental brief and acknowledged that the growing circuit split may warrant review of the ATDS issue. But he noted that the definition of an ATDS is also the subject of a regulatory proceeding before the FCC and that “[r]egulatory action by the FCC, if within the scope of authority delegated to the agency, could potentially supersede a ruling by this Court on the best reading of the statute.” He also suggested that the Court may wish to request the views of the Solicitor General, who had yet to take a position on the ATDS issue, regarding whether certiorari should be granted. The Court declined to do so, granting the petition earlier today.

Suffice it to say that there will be considerable interest in this appeal from stakeholders across the TCPA spectrum. Briefing will commence shortly and argument should be heard—in one format or another—after the Court’s next term begins in October.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 191


About this Author

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...

Marsha Indych, Litigation Lawyer, Drinker Biddle

Marsha J. Indych assists her clients with complex business disputes, including contract claims, breaches of fiduciary duty, and business torts. Marsha has experience litigating international business disputes, products liability claims, class action claims, employment disputes, environmental claims, commercial real estate disputes, and bankruptcy adversarial proceedings. She has handled numerous cases in New York's federal and state courts, including the New York State Commercial Division, as well as securities arbitrations before FINRA.

While in law school, Marsha twice interned for the Hon. Joseph A. Greenaway, Jr. prior to his appointment to the Third Circuit. She also interned for The Innocence Project legal clinic at Cardozo where she handled a variety of cases, including that of Jerry Miller, the 200th person exonerated by DNA evidence.