A Ninth Circuit panel affirmed the district court’s dismissal with prejudice of a class action complaint in which the plaintiff alleged that Meta Platforms, Inc. (Meta) violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited “Birthday Announcement” text messages to consumers’ cell phones.  Among other restrictions, the TCPA prohibits calls to cell phone numbers using an Automatic Telephone Dialing System (ATDS) without prior express consent.  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 question on appeal in Brickman v. Meta Platforms, Inc. was whether to qualify as an ATDS, automatic dialing equipment must generate the phone numbers to be dialed.  The plaintiff did not argue that Meta’s equipment generated the phone numbers of the consumers who received the unsolicited texts because the phone numbers had been provided directly to Meta by consumers via Facebook.  Instead, the plaintiff argued that Meta’s equipment qualified as an ATDS because it determined the order in which the phone numbers were stored and dialed.

While Brickman was pending, another Ninth Circuit panel ruled in Borden v. eFinancial, LLC, that “an [autodialer] must generate and dial random or sequential telephone numbers under the TCPA’s plain text.”  Stating that the panel was bound by the earlier Ninth Circuit decision, the majority opinion held that Meta did not violate the TCPA because its equipment did not qualify as an ATDS as it did not randomly or sequentially generate the telephone numbers in question.

Although Judge VanDyke concurred in the majority opinion because “our decision here is boxed in by circuit precedent,” he expressed his disagreement with Borden.  According to Judge VanDyke, Borden had wrongly concluded that a “random or sequential number generator” in the TCPA’s definition of an ATDS must mean a “random or sequential phone number generator.” (emphasis included).  He asserted that Borden’s interpretation of an ATDS overlooked that the phrase “random or sequential number generator” has a known meaning as “a particular type of computational tool that can be used to generate all types of different numbers, from telephone numbers to zip codes to a sequence of consecutively ordered numbers….” 

In his view, this interpretation “silently cut[s] the legs out from under the Supreme Court’s interpretive rationale” in Facebook v. Duguid because it removes any independent meaning for the word “store” from the ATDS definition while the Supreme Court attempted to show that “store” did have independent meaning from “produce.”  Specifically, Judge VanDyke pointed to the Supreme Court’s observation in footnote 7 that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” (emphasis added).  According to Judge VanDyke, “the whole point of footnote 7 was that a random or sequential number generator might also be used to determine the “order in which to pick” existing telephone numbers, regardless of how they were generated.” (emphasis included).

Judge VanDyke indicated that there was “no substance to the fear expressed by both Facebook in this case and our court in Borden that actually giving meaning to the Supreme Court’s interpretation in Duguid’s footnote 7 could turn every cell phone number into an autodialer simply because cell phones store phone numbers.”  He asserted that “[a] cell phone could only violate the TCPA if it deployed an application that automatically stored telephone numbers in a ‘random or sequential order’ for the purpose of sequentially calling them in that order, unaided by the human dialer.”

He also indicated that “by not acknowledging the broader purposes of the TCPA, our court in Borden overlooked the extent to which the complained-of conduct falls within the TCPA’s prohibition.”  In his view, Borden focused on legislative history showing a concern with the potential for automatic sequential dialing to interfere with the use of emergency service telephone lines and overwhelm sequentially-numbered business lines and minimized legislators’ concern “with the nuisance to other commercial and residential consumers” who had been receiving unsolicited calls from automatic dialers.