Autodialed calls are one of the major categories of calls that the Telephone Consumer Protection Act (“TCPA”) regulates. The Third Circuit—which covers Pennsylvania, Delaware, and New Jersey—just aligned with the Eighth and Ninth Circuits in rejecting the argument that a device can be considered an autodialer when it uses “a number generator to select and dial phone numbers from a previously compiled list[.]” See Perrong v. Montgomery Cnty. Democratic Comm., No. 23-2415, 2024 U.S. App. LEXIS 9238 (3d Cir. Apr. 17, 2024). In short, even if the calling technology may select the next number to be dialed, it is not an autodialer under the TCPA if the customer supplied the set of phone numbers that would be called.
TCPA Restrictions on Autodialer Usage
The TCPA restricts, in relevant part, non-emergency autodialed calls (and text messages) to cell phones. You can only use an autodialer to make telemarketing or advertising calls to cell phone users who have provided you their “prior express written consent.” See 47 C.F.R. § 64.1200(a)(2). You still need consent—albeit a more relaxed form—to make any other non-emergency autodialed calls to cell phones. See 47 U.S.C. § 227(b)(1)(A); 47 C.F.R. §§ 64.1200(a)(1), (a)(2) (requiring “prior express consent” for non-emergency, non-telemarketing autodialed calls to cell phone users). The TCPA’s autodialer restrictions do not apply to calls to landlines or business phones.
So What is an Autodialer?
Although “autodialer” is the colloquial term, the TCPA’s rules, and the FCC’s implementing regulations, apply to an “automatic telephone dialing system” (“ATDS”), which is defined as “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.” See 47 U.S.C. § 227(a)(1); 47 C.F.R. § 64.1200(f)(2).
For many years, plaintiffs’ lawyers successfully convinced the courts to effectively expand Congress’s autodialer definition to include technology that didn’t actually do what the law says it has to, i.e., to generate telephone numbers. Courts also indulged a similarly expansive view from the FCC who also, like a modern shaman, divined the spirit of Congress rather than simply read and adhered to the words Congress actually used. In April 2021, the U.S. Supreme Court, in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, rightfully corrected that mistake; you can find the full decision here.
In Facebook, the Supreme Court held that, for a device to qualify as an ATDS, it has to do what Congress said it has it do: it “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Id. at 1167. In other words, to be an autodialer, the equipment must have the capacity to generate telephone numbers, which most devices longer do.
As a result, plaintiffs have been attempting to make a meal out of a footnote contained in the Facebook decision. In footnote 7, the Supreme Court discussed the possibility that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” Id. at 1172 n.7. Plaintiffs have latched on to that footnote in a desperate attempt to once again convince the courts to expand the TCPA’s autodialer definition.
Post-Facebook Appellate Cases
The Eighth and Ninth Circuit appellate courts quickly dispensed with this footnote-7 argument. See Borden v. eFinancial, LLC, 53 F.4th 1230, 1233, 1236 (9th Cir. 2022) (“[W]e hold that an autodialer must randomly or sequentially generate telephone numbers. . . . Nothing in the [Supreme Court]’s opinion suggests that the Court[,] [through footnote 7][,] intended to define an autodialer to include the generation of any random or sequential number.”) (emphasis added); Beal v. Outfield Brew House, LLC, 29 F.4th 391, 396 (8th Cir. 2022) (rejecting plaintiff’s footnote-7 argument as “we do not believe the [Supreme] Court’s footnote indicates it believed systems that randomly select from non-random phone numbers are Autodialers.”).
In Perrong v. Montgomery Cnty. Democratic Comm., No. 23-2415, 2024 U.S. App. LEXIS 9238, at *3 (3d Cir. Apr. 17, 2024), the Third Circuit recently rejected the plaintiff’s claim that he received autodailed calls from the defendants “because their device employed a number generator to determine the order in which to call a list of phone numbers.” The Third Circuit described the device at issue being used in “list-mode, where [it] dials telephone numbers from a customer list.” Id. In reliance on footnote 7, the plaintiff argued that list-mode calling constitutes autodialer usage. The Third Circuit rejected plaintiff’s argument, joining Beal and Borden. It held that a device’s use of “a number generator to select and dial phone numbers from a previously complied list” does not constitute autodialer usage. Thus, it found in the defendants’ favor.
With this decision, three Circuit Courts have now definitively rejected the use of footnote 7 to expand the autodialer definition. This is a favorable trend for TCPA defendants (and explains why the Plaintiff’s bar is lobbying Congress to revise the TCPA’s definition of ATDS).
