April 19, 2021

Volume XI, Number 109


April 16, 2021

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Visualizing the Facebook Ruling: Let’s Look at Some Redlines Together and Figure This Out

I’m in between calls on Facebook and it is clear that confusion still abounds. Even some defense lawyers are looking at this the wrong way. And this is after my webinar and a masterclass!

So let’s break it down, piece by piece and VISUALIZE what Facebook really did. Who doesn’t like a little track change redline action?

The Statutory Language

First, here’s what the statute actually says.

As you can tell the TCPA’s ATDS definition definitely requires that the equipment used to make a call have the capacity to use a random or sequential number generator to do… something.

The issue has always been what does that generator have to do? While to my eye the definition requires the dialer to use a generator to produce the numbers to be called–either immediately or over time (hence the word storage)–that is not how all Courts have approached the definition. Which is why the TCPAWorld was so fractured and the Supreme Court had to look at it.

The Marks Approach

The lead decision taking a “broad” view of this definition was the Ninth Circuit’s decision in Marks. Here is how Marks interpreted the TCPA’s ATDS definition:

As you can see the Court in Marks interpreted the phrase “random or sequential number generator” to modify only the word “produce” and not “store.” It also inserted the word “automatically” in connection with the way numbers were to be dialed. The end result was that any dialing system that could store numbers–e.g. from a list–to be called without human intervention at the time of dialing was an ATDS.

It is important to keep the Marks formulation in mind because it was this definition that was EXPRESSLY REJECTED by Facebook. 

What Facebook Holds

In Facebook the Supreme Court actually issued a fairly narrow holding, and it was simply this: contrary to Marks, the phrase “using a random or sequential number generator” modified both the word “store” and “produce” in the ATDS definition.

Visualizing the Facebook ruling via a redline yields this:

As you can see the Supreme Court found that a machine must make use of a random or sequential number generator as part of its “storage” functionality in order to be deemed an ATDS. That leaves pretty to squabble about since it is unclear how a dialer can perform a “storage” function in that manner–which was famous-grammarian Bryan Garner’s whole point in arguing that the Marks definition was correct– and, as we shall see, footnote 7 doesn’t really help answer the question.

Two other words in the definition–which I have highlighted–also imbue uncertainty here. First is the word “capacity.” TCPAWorld has long-suffered at the hands of that word and I will not recount the horrors of the “future capacity” days or dwell on the dangling FN 9 of Marks issue. I will simply note the existence of the word and its propensity to spark endless and ongoing confusion.

Second, is the word “equipment.” How far down the maze of integrated hardware and software components must a court inspect for the required “capacity” to operate as an ATDS? While the word “equipment” has caused less problems than “capacity” in TCPAWorld it has already burned some companies, while saving others. Expect a lot more consternation over the phrase as we move forward post Facebook.

So there is some legitimate controversy remaining post Facebook–i.e. how does a system store using a generator? what does capacity mean? what is the equipment to be analyzed?

But there is also likely to be–and already is in some corners–illegitimate arguments made that are simply foreclosed by Facebook.

What Facebook Does NOT Hold

Here are two interpretations that are simply not correct interpretations of Facebook that I have seen tossed out there:

This reading has been popularized owing to footnote 7. Here neither “store” or “produce” are modified by the use of an R&SNG –only the manner by which calls are placed is. Strangely this read–which is absolutely at odds with the holding of Facebook–finds some support in the curious footnote, which reads:

That curious provision right in the middle is the problem: “an auodialer might use a random number generator to determine the order in which to pick phone numbers from a prerecorded list.”  That seems to suggest that the manner of calling numbers is at issue, although–I think– the footnote was designed to illustrate ways in which a dialer might store numbers using an R&SNG.

Expect this issue to be litigated–but, again, this interpretation is NOT what Facebook holds. It is, at best, a reading enabled by a footnote.

What Facebook Really Does Not Hold

The worst interpretation of all-and the one the Plaintiff’s bar is most likely to advance- is an interpretation that focuses on the order of dialing. But this argument has zero support in Facebook.

First, here’s the interpretation:

How Plaintiff’s lawyers are getting here from the holding of Facebook is a mystery to me, but it has something to do with FN7 coupled with “capacity” coupled with the idea that all dialing from a list has to happen randomly or sequentially–which is not true but also completely irrelevant.

In any event, if anyone tries to sell you on this interpretation send them to this post.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 98



About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...