9th Cir. Follows Borden Decision in Brickman Case — Says No ATDS Was Used

In Brickman v. United States, No. 21-16785, 2022 U.S. App. LEXIS 35286, at *4-6 (9th Cir. Dec. 21, 2022), the Court of Appeals found no ATDS was used, and found no basis to distinguish its Borden decision.

This case arises from the district court’s dismissal with prejudice of Colin R. Brickman’s class-action claim under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, against Meta Platforms, Inc. (Meta), formerly known as Facebook, Inc. Enacted in 1991, the TCPA generally bans calls made to a telephone if the call is generated by an “automatic telephone dialing system” (commonly referred to as an “autodialer”). Id. § 227(b)(1)(A). The TCPA defines an autodialer as a piece of equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator” (an RSNG), and “to dial such numbers.” Id. § 227(a)(1)(A).  Brickman argues that Meta violated the TCPA by sending unsolicited “Birthday Announcement” text messages to consumers’ cell phones. He alleges that these Birthday Announcements were sent by Meta through an autodialer that used an RSNG to store and dial the telephone numbers of the consumers being texted. He does not argue that the RSNG actually generated the consumers’ phone numbers (consumers provided them directly to Facebook), but that the RSNG was used to determine the order in which the phone numbers were stored and dialed, an activity that he argues implicates the TCPA. Meta disagrees with Brickman’s interpretation of the autodialer provision, arguing that a TCPA-defined RSNG must actually generate the phone numbers in the first instance.  The question on appeal is whether a TCPA-defined autodialer must use an RSNG to generate the telephone numbers that are dialed. During our consideration of this matter, another panel of this court answered this exact question in Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022), holding that “an [autodialer] must generate and dial random or sequential telephone numbers under the TCPA’s plain text.” Id. at 1231 (emphasis in original). Borden resolves the sole issue in this case. We therefore hold that Meta did not violate the TCPA because it did not use a TCPA-defined autodialer that randomly or sequentially generated the telephone numbers in question.  Brickman argues to the contrary, contending that Borden does not control the outcome because “Borden addressed the ‘production’ prong of § 227(a)(1)(A), not the ‘storage’ prong at issue here.” But Borden did not in fact limit its holding to the production prong. The court instead interpreted the definition of an autodialer in its entirety, finding that the text and context of the TCPA “make[] clear that the number in ‘number generator’ . . . means a telephone number.” Borden, 53 F.4th at 1233 (emphasis in original). This is true regardless of whether the numbers are stored or produced—either way, “an autodialer must randomly or sequentially generate telephone numbers, not just any number.” Id. at 1232 (emphasis in original). Borden therefore clearly controls this case. For what it is worth, the majority of the present panel agrees with the analysis in Borden. But we recognize that whether we agree or not is inconsequential because we cannot disregard an earlier published decision of this circuit that is directly on point. See United States v. Wright, 46 F.4th 938, 946 (9th Cir. 2022) (“[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit.” (quoting United States v. McAdory, 935 F.3d 838, 843 (9th Cir.).   We therefore AFFIRM the judgment of the district court.