Irvine

On April 1, 2021, in Facebook v. Duguid, 592 U.S. __(2021), the Supreme Court issued a unanimous and long-awaited ruling clarifying the definition of an “automatic telephone dialing system” (“ATDS”) under the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U. S. C. § 227(a)(1): an ATDS is a system that uses a random or sequential number generator to dial or store telephone numbers for call. The key piece of this holding is that the “random or sequential” phrase applies to both storing the telephone numbers and dialing the telephone numbers.  Otherwise, the Supreme Court reasoned, any phone capable of storing numbers (e.g., “virtually all modern cell phones”) would be subject to the TCPA’s onerous prior written consent requirements. Instead, unless the device has the capacity “to store . . . telephone numbers to be called, using a random or sequential number generator” or to “produce telephone numbers to be called, using a random or sequential number generator,” that device is not an ATDS and not subject to the strict prior written consent requirements of the TCPA.