The Telephone Consumer Protection Act (TCPA) places broad restrictions on robocalls placed using automated telephone dialing systems, generally referred to as autodialers. An autodialer is a device that can “store or produce telephone numbers to be dialed, using a random or sequential number generator,” and can then call those telephone numbers. In 2021 in Duguid v. Facebook, the Supreme Court held that the phrase “using a random or sequential number generator” modifies both “store” and “produce,” so that an autodialer must use a random or sequential number generator either to store telephone numbers or to produce them.
In Brickman v. Meta Platforms, a panel of the Ninth Circuit held that, even if a device uses random or sequential number generation in the process of storing a list of telephone numbers to be dialed, the device it not covered by the TCPA’s definition of autodialer unless it uses the random or sequential number generator to create the telephone numbers themselves. The plaintiff petitioned for rehearing en banc, and Public Citizen filed an amicus brief in support of the petition. The brief explained that the plain language of the statute, and the approach to statutory construction taken by the Supreme Court in Duguid, do not allow courts to rewrite the statute to require that an autodialer have the capacity to generate telephone numbers randomly or sequentially. Rather, the statute requires only that a random or sequential number generator be used to store or produce telephone numbers. Thus, for example, a device that uses a number generator to determine the order in which a list of telephone numbers is stored, or produced from storage to be dialed, meets the requirements of the statutory definition.
The court, however, denied the petition for rehearing en banc.