Last week, yet another California federal court found that following the Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), equipment that dials from a curated list – i.e., one that is not generated using a random or sequential number generator – does not fall within the definition of ATDS, even if the dialing equipment uses a random and sequential number generator to determine which of the phone numbers from that list will be called next. See Raphael Aus. V. Alorica, Inc., 2021 U.S. Dist. LEXIS 240677 (C.D. Dec. 16, 2021).
The plaintiff in Alorica sued the defendant under the TCPA for calls made to collect a debt plaintiff owed Credit One Bank. Defendant moved to dismiss the TCPA claim, arguing that plaintiff failed to plausibly allege that defendant used an ATDS to call plaintiff. The issue facing the Court was whether “a system that calls a prepopulated list of customers or clients is still sufficient to state a TCPA claim in light of” Facebook.
The Court started by looking at the four possible interpretations of ATDS set forth in the Seventh Circuit’s pre-Facebook decision in Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 464-467 (7th Cir. 2020). The Court found that Facebook rejected the third possible interpretation that had been previously adopted by the Ninth Circuit but did not directly address which of the three other interpretations was the correct one. To answer that question, the Court looked at the infamous Footnote 7 of the Facebook opinion, which the Court determined speaks to the question without expressly resolving it. The Court found that at first blush, the footnote seemed to “describe a situation where the random or sequential number generator is used to either store the numbers in the preproduced list (interpretation (1)) or to later determine the order in which those predetermined numbers would be called (interpretation 4)),” in which case plaintiff’s allegations would survive the motion to dismiss. However, the court found that the amicus brief cited to support the example in Footnote 7 “tells a different story” because the preproduced list in the example “was itself a list of phone numbers generated by a random and sequential number generator.” Thus, the citation supports the Gadelhak court’s second interpretation: any storing or producing of telephone numbers to be called, provided that those telephone numbers were previously generated using a random or sequential number generator.
The Court agreed that this second interpretation is the one that finds the most support in the text of the statute, the purpose of the TCPA, and the case law before, after, and including Facebook. The Court accordingly adopted Gadelhak’s second interpretation of ATDS and dismissed the TCPA claim “finding that a system that selects phone numbers from a prepopulated list does not constitute an autodialer where the prepopulated list was not itself generated using a random or sequential number generator, even if the phone number selection process itself involves a random or sequential number generator.”
A district court – especially one in the Ninth Circuit – dismissing a TCPA claim is generally cause for celebration. But remember, there are still courts going the other way, that is finding that equipment that dials from a curated list – if using a random and sequential number generator – falls within the definition of ATDS. In fact, Eric just posted about such a case today. Also, this case is a good reminder for those of us out in TCPAWorld to make sure we know how any prepopulated list that we are using to make calls is generated. We wouldn’t want to learn after a lawsuit is filed that the preproduced list was generated using a random and sequential number generator!
finding that a system that selects phone numbers from a prepopulated list does not constitute an autodialer where the prepopulated list was not itself generated using a random or sequential number generator, even if the phone number selection process itself involves a random or sequential number generator.
This is getting convoluted.