Simon Cohen | When Unsubscribe Doesn’t Work: How Should We Define Autodialers in the Age of Cell Phones?

BACKGROUND

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) in an effort to curb unsolicited robocalls. Section 227(a)(1) of the TCPA defines an automatic telephone dialing system (ATDS) 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.” Section 227(b)(1)(B) prohibits the use of ATDS devices to contact any residential telephone “without the prior express consent of the called party.” 47 U.S.C. § 227.

THE ISSUE

Under the TCPA, is the definition of an ATDS limited to only those devices that both produce phone numbers using a random or sequential number generator and automatically dial those numbers; or does the definition encompass a broader scope of devices that can still store and automatically dial phone numbers, but do not use random number generators?

THE SPLIT

The Sixth, Second, and Ninth Circuits have adopted a broad interpretation of the language of the TCPA. These three circuits believe that the broad definition will ensure companies that use autodialers to harass individuals will be held accountable for their actions. The Third, Seventh, Eleventh, and D.C. Circuits have disagreed and instead interpret the TCPA narrowly. One of the main justifications posited by these circuits is that a broad definition would cover too many modern electronic devices never intended by Congress when it enacted the TCPA.

Broad Interpretation

In July 2020, the Sixth Circuit joined the Second and Ninth Circuits in affirming a broad interpretation of the TCPA definition of autodialers. In Allan v. Pa. Higher Educ. Assistance Agency (2020), the court ruled that the TCPA definition includes devices that do not use random or sequential number generators. In Allan, the plaintiff took out a student loan from the Pennsylvania Higher Education Assistance Agency (PHEAA) and in doing so, consented to future calls regarding her loan. The plaintiff later requested that she not be called. After requesting to be taken off the phone list, the plaintiff and her cosigner were called a combined 353 times with automated messages. The PHEAA used a system called Avaya, which stored phone numbers and could automatically dial them to send automated messages. Avaya did not use a random or sequential number generator to create the phone numbers to call. The plaintiff sued the PHEAA alleging that the automated phone calls she did not consent to were in violation of the TCPA.

In interpreting the TCPA, the Sixth Circuit in Allan ultimately held in favor of the plaintiff, stating that “the autodialer ban applies to stored-number systems.” Even though the Avaya system did not use a random number generator, it still fell within the type of device making the type of phone calls from which the TCPA was designed to protect. The court rejected the Seventh and Eleventh Circuit’s narrow definition of an autodialing system that requires the use of random or sequential number generators, noting that such a narrow definition would unreasonably defang the TCPA by allowing companies to use one device to randomly generate the phone numbers and a second device to call the numbers. According to the Sixth Circuit, a narrow definition would thus create a loophole for companies to escape prosecution under the TCPA.

In April 2020, the Second Circuit held similarly in Duran v. La Boom Disco, Inc. (2020). In Duran, the plaintiff sued the defendant for sending over 100 text messages through a computer program. In interpreting the meaning of the TCPA, the court contemplated both a broad and narrow definition of an autodialer, but ultimately reasoned that “in order for a program to qualify as an ATDS, the phone numbers it calls must be either stored in any way or produced using a random-or sequential-number-generator.” In other words, to be an ATDS, a program does not have to meet both criteria. Finally, the Ninth Circuit adopted a broad interpretation of an autodialer in 2018 in Marks v. Crunch San Diego, LLC when it reasoned that the definition of an ATDS includes devices with the capacity to dial stored phone numbers automatically, regardless of the existence of random number generators.

Narrow Interpretation

The Third, Seventh, Eleventh, and D.C. Circuits have all held that a narrow definition of an autodialer is more appropriate. In February 2020, the Seventh Circuit held for the defendant in Gadelhak v. AT&T Services (2020). The court reasoned that the capacity to generate random or sequential numbers is essential to the TCPA definition, and because an AT&T text messaging program did not use a random number generator, the TCPA did not apply. The Third Circuit held similarly in Dominguez v. Yahoo, Inc. (2018), where the court ruled in the defendant’s favor because the plaintiff was unable to prove that an automated email and SMS program had the “capacity to function as an autodialer by generating random or sequential” numbers.

The D.C. and Eleventh Circuits both adopted the same narrow definition of an autodialer, but also brought up an interesting policy argument in support of their interpretation. In ACA Int’l v. FCC (2018), the D.C. Circuit posited that a broad definition that allows for any device that can store and automatically call a phone number would be unreasonable because it would include just about every modern cellphone. The Court worried that a broad interpretation would mean that “every smartphone user violates federal law whenever she makes a call or sends a text message without advance consent.” The Eleventh Circuit shared a similar worry in Glasser v. Hilton Grand Vacations Co., LLC (2020) when it said that “it’s hard to think of a phone that does not have the capacity to automatically dial telephone numbers stored in a list[.]”

Interestingly, the Sixth Circuit in Allan offered a counter to the D.C. and Eleventh Circuits’ cell-phone argument. The Sixth Circuit determined that just because a device has the capacity to store and dial phone numbers automatically, it is not automatically an autodialer under the TCPA. The court claimed that to be prosecuted under the TCPA, the device must not only possess the requisite qualities, it must be physically utilized as an autodialer as well. Using the Sixth Circuit explanation, a cell phone would not count as an autodialer unless someone purposefully programmed it to be used as one.

LOOKING FORWARD

The Supreme Court is scheduled to hear oral arguments in Facebook, Inc. v. Duguid in December 2020. In its petition for a writ of certiorari, Facebook is asking the Court to clarify which definition of the TCPA ought to apply. If the Supreme Court adopts the broader definition of the Second, Sixth, and Ninth Circuits, there could be interesting implications for essentially all modern cell phones. If all cell phones are found to qualify under the TCPA, we could see new legislation in Congress further limiting the scope of the TCPA.