Supreme Court Sets Date to Hear Arguments in TCPA ATDS Case

Mark your calendars, ladies and gentleman. December 8 is not just a day that is two days before my birthday anymore.

That Tuesday will be the day that the Supreme Court will hear arguments in Facebook v. Duguid, a case that aims to settle — once and for all — how an automated telephone dialing system is defined under the Telephone Consumer Protection Act.

Now, before anyone gets too excited, the hearing is on December 8, but as to when the Supreme Court will release its decision is anyone’s guess.

In this case, the plaintiff sued Facebook after he received text messages regarding suspicious attempts to access his account with the social media giant. The Ninth Circuit Court of Appeals ruled against Facebook, largely using the definition of an ATDS that it set in Marks v. Crunch San Diego. The Ninth Circuit — followed later by the Second Circuit — have ruled that an ATDS is defined as technology that has “the “capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator.”

But other Appeals Courts — the Third, Seventh, and Eleventh — have issued opposite rulings, determining that technology that does not have the capacity to generate random or sequential numbers does not meet the definition of an automated telephone dialing system under the TCPA.

The question before the Supreme Court is:

Whether the definition of ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

The federal government is lining up behind the Third, Seventh, and Eleventh Circuit definition, for what it’s worth, and a number of groups, including debt collection companies, have filed briefs supporting Facebook’s argument.

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