9th Circuit says number generator does not violate TCPA

Courts Appellate Ninth Circuit TCPA Autodialer Class Action

On November 16, the U.S. Court of Appeals for the Ninth Circuit upheld a district court’s dismissal of a proposed TCPA class action, holding that in order for technology to meet the definition of an “automatic telephone dialing system” (autodialer), the system must be able to “generate and dial random or sequential telephone numbers under the TCPA’s plain text.” Plaintiff claimed he began receiving marketing texts from the defendant after he provided his phone number to an insurance company on a website. Plaintiff sued alleging violations of the TCPA and asserting that the defendant used a “sequential number generator” to select the order in which to call customers who had provided their phone numbers. This type of number generator qualifies as an autodialer under the TCPA, the plaintiff contended, referring to a footnote in the U.S. Supreme Court’s ruling in Facebook v. Duguid (covered by a Buckley Special Alert), which narrowed the definition of an autodialer under the TCPA and said “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” Defendant countered, however, that its system is not an autodialer, and “that the TCPA defines an autodialer as one that must generate telephone numbers to dial, not just any number to decide which pre-selected phone numbers to call.”

The 9th Circuit was unpersuaded by the plaintiff’s argument, calling it an “acontextual reading of a snippet divorced from the context of the footnote and the entire opinion.” The appellate court pointed out that nothing in Facebook suggests that the Supreme Court “intended to define an autodialer to include the generation of any random or sequential number.” The 9th Circuit further explained that “[u]sing a random or sequential number generator to select from a pool of customer-provided phone numbers would not cause the harms contemplated by Congress.”