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Supreme Court Will Review ATDS Definition

In a decision that may have profound importance for TCPA litigation, the Supreme Court announced yesterday that it had granted the petition for writ of certiorari in the case Facebook v. Duguid, where the Court will review the question of what constitutes an autodialer under the TCPA. The Justices will seek to give clarity on the definition of an autodialer and solve the current Circuit split that has substantially impacted the TCPA landscape across the country.

After the DC Circuit’s Opinion in ACA International overturning the definition of an “automatic telephone dialing system” and ordering the FCC to come up with a new definition, the federal courts have been struggling with this issue, leading to contradictory results in different jurisdictions.

The ThirdSeventh and Eleventh circuits have adopted a narrow interpretation of the term ATDS, covering only devices that make calls or send text messages to randomly or sequentially generated phone numbers. While the Second and Ninth Circuits have interpreted the term broadly, including not only devices that randomly or sequentially generate numbers, but also those with the capacity to store and automatically dial numbers.

In the petition for writ of certiorari originally filed by Facebook on October 2019, the company challenged the Ninth Circuit’s broad interpretation of the term ATDS, alleging that such interpretation rewrote the express text of the TCPA and could cover any modern smartphone.

Considering the differing interpretations, professional plaintiffs have focused on bringing TCPA lawsuits in favorable jurisdictions, where equipment would more likely be deemed an autodialer. The Supreme Court will now review the contradicting interpretations and determine what the term ATDS actually means under the TCPA. A decision from the Court is not expected until next summer.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 192


About this Author

Ernesto Mendieta Telecom Attorney

Ernesto Mendieta is an experienced bilingual attorney with a history of helping international clients resolve complex matters.  

Ernesto began his career in Mexico as an associate at one of the world’s largest law firms, before specializing in telecommunications law at Mexico’s preeminent telecommunication boutique firm. In that capacity, Ernesto worked with competitive carriers entering the Mexican telecommunications market on all aspects of regulatory compliance and corporate formation. He helped several U.S. companies start operations in Mexico as ISPs, MVNOs, resellers and e-...