The text of the Telephone Consumer Protection Act (TCPA) defines an Automatic Telephone Dialing System (ATDS)—colloquially known as an autodialer—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.” Of course, it is not clear how that relatively vague definition written in 1991 applies to the wide panoply of dialing technology available today. Unfortunately, Federal Communications Commission (FCC) rulemaking and case law have not resolved this and instead have created circumstances where the definition of what constitutes an autodialer varies from jurisdiction to jurisdiction.
Much of the conflict regarding the definition of an autodialer revolves around interpreting the TCPA’s use of the word “capacity.” The FCC’s most recent major overhaul of the TCPA is its 2015 TCPA Omnibus Declaratory Ruling and Order. In that document, it interpreted “capacity” in a broad sense, determining that equipment without the “’present ability’ to dial randomly or sequentially” could still qualify as an autodialer if it had “potential functionalities” to do so. This interpretation essentially meant that any device that could potentially dial numbers from a list might be considered an autodialer and thus subject to the TCPA’s regulations on the use of an ATDS.
In 2018, the D.C. Circuit Court issued a decision in ACA International, et al. v. FCC, et al. that struck down the FCC’s broad definition of autodialer, paving the way for the creation of a more reasonable standard. Noting that the 2015 Order’s interpretation of “capacity” essentially had the effect of designating every smartphone as an ATDS, the court vacated that interpretation. This ruling, fortunately, eliminated the overly broad autodialer definition but unfortunately did not offer another definition as a clear replacement, leaving it up to individual courts to interpret the meaning of “capacity” in the TCPA’s definition of ATDS. Two subsequent circuit court decisions have created two conflicting definitions of what exactly is an autodialer.
Three months after the ACA Int’l decision, the Third Circuit Court issued a ruling in Dominguez v. Yahoo that set forth one of the multiple forking paths of what constitutes an autodialer. Following the D.C. Circuit vacating the FCC Order’s interpretation, the Third Circuit determined that its decision was required to interpret the TCPA’s definition of ATDS. The Third Circuit determined that, based on the facts of the case, there was “a genuine dispute of fact as to whether [Yahoo's system] had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.” This created the precedent that an autodialer must have the present capacity to both generate and dial numbers either randomly or sequentially.
Three months after the Third Circuit’s Dominguez decision, the Ninth Circuit reached a decision in Marks v. Crunch San Diego, LLC that offered a much more broad interpretation of what “capacity” means in the TCPA’s definition of an autodialer. The Ninth Circuit acknowledged the Dominguez decision but pointedly declined to follow it. Instead, the court found that the TCPA’s statutory definition of an autodialer was ambiguous and “the term ‘automatic telephone dialing system’ means equipment which has the capacity — (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator — and to dial such numbers automatically (even if the system must be turned on or triggered by a person).” According to this precedent, an ATDS is any device that has the capacity to automatically dial numbers that are stored in a list.
In early 2020, two new rulings in cases in two different circuits set potential precedents for a third definition of what constitutes an ATDS. In Glasser v. Hilton Grand Vacations Company, LLC, the Eleventh Circuit interpreted a key clause (“to store or produce telephone numbers to be called, using a random or sequential number generator”) in the TCPA’s definition of an ATDS such that the phrase “using a random or sequential number generator” modifies both “produce” and “store”. This essentially means that, in the Eleventh Circuit, dialers are only subject to the TCPA’s restrictions on the use of autodialers if they are dialing phone numbers that are randomly or sequentially generated. This interprets the ATDS definition even more narrowly than the Third Circuit’s Dominguez decision. Less than a month later, the Seventh Circuit issued a decision in Gadelhak v. AT&T Services that reached the same conclusion as the Glasser court, extending that narrow ATDS definition to another jurisdiction.
In March 2020, two different district courts in two different circuits handed down rulings in two different Telephone Consumer Protection Act (TCPA) cases that rejected a common argument that would have essentially rendered any computer-based dialer as an Automatic Telephone Dialing System (ATDS). These cases—Decapua v. Metro. Prop. & Cas. Ins. Co. and Hagood v. Portfolio Recovery Assocs.—generally followed the definitions set forth by the Gadelhak and Glasser decisions.
As if to forestall any possibility of a coherent trend, another early 2020 ATDS ruling went the other direction, favoring a broad interpretation of the ATDS definition. The Second Circuit found, in Duran v. La Boom Disco, that the texting programs used by the defendant should be regulated as autodialers. Following the Marks precedent, the Court determined that any device that can dial from numbers stored in a list is an ATDS, holding that “an ATDS may call numbers from stored lists, such as those generated, initially, by humans.” The court also found that a human hitting a “send” button to initiate the text campaign is insufficient human intervention to preclude an ATDS designation.
In July 2020, the Sixth Circuit staked a claim to the broader definition of an ATDS. In Allan v. Pa. Higher Ed. Assist. Agency, the court adopted the Marks definition of an autodialer as essentially anything that dials numbers from a list.
As a result of these wildly differing interpretations of the TCPA’s definition of an autodialer, there were multiple competing precedents that courts are following. This led to a confusing circumstance where the definition of what constitutes an ATDS depended entirely on the particular court jurisdiction—including a split within the state of Michigan where one district followed the Dominguez precedent while the other followed the Marks precedent.
On April 1 (April fools Day) 2021, the Supreme Court handed down a ruling in Facebook v. Duguid that finally resolved these disparities in favor of the more narrow, statutory definition. In the court's unanimous opinion, Justice Sonia Sotomayor wrote, ““We hold that a necessary feature of an autodialer under [the TCPA] is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Thus, the autodialer is finally properly defined.