Days after missing the opportunity in Barr v. American Association of Political Consultants to limit the improper impact of the Telephone Consumer Protection Act on legitimate businesses, the U.S. Supreme Court has agreed to tackle the most debated issue in TCPA litigation history.  The U.S. Supreme Court has agreed to decide what qualifies as an automatic telephone dialing system (ATDS).

The TCPA defines an ATDS 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.”  The Ninth Circuit, first in Marks v. Crunch San Diego then in Duguid v. Facebook, Inc., interpreted this definition broadly to include equipment that can automatically dial phone numbers stored in a list.  It held the equipment did not need to randomly or sequentially generate those numbers.  That decision is at odds with holdings from the Third, Seventh, and Eleventh Circuits.

Yesterday, the Court granted Facebook’s petition for certiorari in Duguid v. Facebook, Inc.  The Supreme Court granted certiorari to decide the second question presented in the petition.  (The first question raised the First Amendment issue decided in Barr.)  The second question asked:

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 “use a random or sequential number generator.”

In 2015, FCC Commissioner Pai recognized that “[t]he TCPA has become the poster child for lawsuit abuse.”  In 2017, House Judiciary Committee Chairman Bob Goodlatte noted that much of this litigation arises “from a lack of clarity in the law’s application, which is being exploited by attorneys seeking big payouts.”

The Supreme Court will finally give legitimate businesses the much-needed clear guidance they deserve.  And if the Court rejects the Ninth Circuit’s elimination of the random or sequential number generator requirement, it will also finally stem the tide of TCPA litigation and align the TCPA with its true purpose.