Appeals Court Tosses TCPA Case Based on Footnote in Facebook Ruling

The Court of Appeals for the Ninth Circuit, in affirming the dismissal of a case at the District Court level, has held that in order for technology to meet the definition of an automated telephone dialing system, it must generate and dial random or sequential telephone numbers, based on how the Supreme Court interpreted the definition in the Telephone Consumer Protection Act.

A copy of the ruling in the case of Borden v. eFinancial can be accessed by clicking here.

The plaintiff provided his number to an insurance company by filling out a form on the company’s website. Subsequently, the plaintiff began receiving marketing texts from the defendant. The plaintiff sued, accusing the defendant of violating the TCPA because it used a sequential number generator to pick the order in which it called customers who had provided their phone numbers.

The plaintiff’s argument hinged on a footnote in the Supreme Court’s ruling in Facebook v. Duguid which stated that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list,” which is what the plaintiff argued the defendant did in this situation.

But the Appeals Court called the argument an “acontextual reading of a snippet divorced from the context of the footnote and the entire opinion.” There was nothing in the Supreme Court’s actual ruling that indicated it “intended to define an autodialer to include the generation of any random or sequential number,” the Appeals Court wrote. Ultimately, the Supreme Court’s decision “reinforces that an autodialer must generate telephone numbers” and not any other kind of number.

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