Multiple Layers Of TCPA Defense Remain Important After Duguid [telecom]

By Matt Knowles , Saba Bajwa and Amy C. Pimentel

The Supreme Court's 2021 decision in Facebook v. Duguid1 changed the landscape of Telephone Consumer Protection Act (TCPA) litigation. For years prior, aggressive plaintiffs had stretched the TCPA's antiquated language defining automatic telephone dialing systems (ATDS) well beyond its breaking point. The ATDS definition is critical, as use of an ATDS triggers consent requirements under Section 227(b) of the TCPA and failure to comply can result in catastrophic liability.

Duguid emphasized that Congress meant what it said in defining an ATDS, and its definition must be applied as written. An ATDS is defined 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." The Supreme Court held that the phrase "using a random or sequential number generator" was meant to qualify the entire preceding phrase, such that an automatic dialing system must use random or sequential number generators to either store or produce telephone numbers in order to qualify as an ATDS.

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Bill Horne
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