The Acting Solicitor General submitted an amicus brief in Facebook v. Duguid on September 4, urging the Supreme Court to find that telephony must randomly or sequentially generate telephone numbers, then dial those numbers in order to qualify as an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA).
In July, the Supreme Court granted certiorari in Facebook v. DuGuid to decide, once and for all, whether an ATDS requires random or sequential number generation. In its late 2018 Marks decision, the Ninth Circuit found that storage of telephone numbers, without random or sequential number generation, was enough to satisfy the first prong of the TCPA's definition of an ATDS. Earlier this year, the Second Circuit joined the Ninth Circuit, while the Third, Seventh, and Eleventh Circuits have concluded that a system must have the capacity to generate random or sequential numbers to qualify as an ATDS.
In Duguid, Facebook challenged the Ninth Circuit's definition, contending that it was too broad. In defending the lawsuit, Facebook argued that its equipment was not an ATDS because it stores numbers only to be called "reflexively" in response to "outside stimuli," such as a suspicious log-in. Facebook's equipment, it argued, does not "use a random or sequential number generator," and as a result, does not constitute an ATDS. According to Facebook, if the definition of ATDS is not read to exclude equipment which only stores numbers for "responsive" calling, all smartphones will be considered autodialers. The Ninth Circuit disagreed, doubled-down on Marks, and ruled that the plaintiff's claims could go forward....