by David O. Klein
On April 1, 2021, the United States Supreme Court ("Supreme Court") unanimously reversed the Ninth Circuit Court of Appeals decision in Facebook Inc. v. Duguid and held that for a device to constitute an "Automatic Telephone Dialing System" ("ATDS") within the meaning of the Telephone Consumer Protection Act of 1991 ("TCPA"), that device must have the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. The TCPA prohibits making calls or sending text messages "(other than a call made for emergency purposes or made with the prior express consent of the called party) using an [ATDS] . . . to any telephone number assigned to a . . . cellular telephone service." 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." Courts across the country have wrestled with the TCPA's vague statutory language for years. However, the Supreme Court's decision in the Facebook TCPA law case now provides some much-needed clarity and, ultimately, should help the defense bar in TCPA actions.