December 2, 2021

Volume XI, Number 336

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Supreme Court Narrows Scope of TCPA in Landmark Autodialer Ruling

In a unanimous decision, the Supreme Court expressly overturned the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, by holding, “to qualify as an ‘automatic telephone dialing system’ under the TCPA, a 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.”  See Facebook v. Duguid, 592 U.S.        (2021).  “Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.  This definition excludes equipment like Facebook’s login notification system, which does not use such technology.” 

Justice Sotomayor wasted no time disposing of the standards set forth by the Second, Sixth, and Ninth circuits.  In the first paragraph of the opinion, she wrote: “the question before the Court is whether [the ATDS] definition encompasses equipment that can ‘store’ and dial telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’ It does not.”

The Court narrowly read the statutory language.  Section 227(a)(1) defines an autodialer as “equipment which 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.”  The Court agreed that a common sense reading of this language confirms that number generation is required: the clause “using a random or sequential number generator” modifies both verbs that precede it (“store” and “produce”).  Echoing concerns raised during oral argument, the Court noted the problem with an expansive interpretation: “Duguid’s interpretation of an autodialer would capture virtually all modern cell phones, which have the capacity to ‘store . . . telephone numbers to be called’ and ‘dial such numbers.’”

The opinion should provide relief for many defendants facing potential liability.  The opinion should also give the plaintiffs’ bar pause before filing new actions in light of the standard that now applies across the country.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 91
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About this Author

Joshua Briones Litigation Lawyer Mintz
Member / Managing Member, Los Angeles Office

Joshua, Managing Member of the firm’s LA office, is a highly experienced trial lawyer with a national practice. He has received awards and national recognition for his innovative approach and specializes in high-stakes, bet-the-company litigation. He represents clients in such industries as financial services, building products, retail, pharmaceuticals, automotive, professional sports, food and beverage, petroleum, chemical manufacturing, health care, high technology, and higher education. He frequently publishes and lectures before national and local bar and industry...

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Russell H. Fox, Communications Attorney, Mintz Levin, Regulatory Approvals
Member

With over 35 years in the wireless telecommunications industry, Russell is among the most experienced wireless communications attorneys in the country. Unique among his peers, Russell assists clients on federal legislative, regulatory, and transactional matters. He analyzes legislation on behalf of clients, participates in proceedings before the FCC and other federal agencies, negotiates spectrum agreements, and represents wireless providers in spectrum auctions. He is also frequently consulted on matters involving US spectrum use and policy.

Whether they are in the middle of a...

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Esteban Morales, Mintz, Class Action Defense Lawyer, financial services litigation
Associate

Esteban is an experienced litigator whose practice is principally focused on class action defense and financial services litigation. Esteban has successfully defended both small and large corporate clients targeted in class action suits alleging violations of the Telephone Consumer Protection Act, California’s Unfair Competition Law, and California’s Invasion of Privacy Act. Results include dismissals at the pleading stage and without any discovery following aggressive defense strategies. In addition to defending class actions, Esteban has represented clients in real...

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Matthew Novian Complex Commercial Litigation Attorney
Associate

Matt focuses his practice on complex commercial litigation, including consumer protection matters. He has experience in drafting briefs and letters to opposing parties and in conducting depositions. In addition, Matt maintains an active pro bono practice, in which he counsels clients in matters related to immigration and domestic violence. He was a Law Clerk at Mintz in 2017. 

While attending law school, Matt was a summer associate at a Los Angeles-based law firm, where he worked on matters involving closely held corporations, commercial real estate disputes, and trademark licensing...

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