9th Cir. Scheduled to Hear Duguid Challenge in Brickman Matter on October 22, 2022

In Brickman v. Meta (9th Cir. No. 21-16785),  the Court of Appeals for the 9th Circuit is poised to rule on efforts to evade the SCOTUS’ ruling in Duguid.  According to the Respondent’s Brief, the issue is framed as:

This appeal involves an effort to evade the consequences of binding Supreme Court precedent that squarely forecloses Plaintiff’s claim. The Telephone Consumer Protection Act (“TCPA”) prohibits certain calls made from an Automatic Telephone Dialing System (“ATDS”), which is defined as equipment that can “store or produce telephone numbers to be called, using a random or sequential number generator” and “dial such numbers.” 47 U.S.C. § 227(a)(1). In Facebook, Inc. v. Duguid, the Supreme Court addressed the scope of this statutory definition, and found that “in all cases,” equipment “must use a random or sequential number generator” to qualify as an ATDS. 141 S. Ct. 1163, 1170 (2021) (emphasis added); see 47 U.S.C. § 227(a)(1)(A). The ATDS provision, the Court explained, targets “a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.” 141 S. Ct. at 1171. This “narrow statutory design” contradicts the notion that Congress “adopted a broad [ATDS] definition.” Id. at 1172. The Court thus made unequivocally clear that the ATDS definition does not “encompass any equipment that merely stores and dials telephone numbers.” Id. at 1171. And because the targeted text messages at issue in Duguid did not plausibly suggest that a random or sequential generator was used, the Court found that the plaintiff’s claims failed on the pleadings. Id. at 1168, 1170.  That holding squarely resolves this case. Plaintiff alleges that Defendant Meta Platforms, Inc. (formerly known as Facebook, Inc.) violated the ATDS restriction by sending a text message to his phone number reminding him of the birthday of one of his Facebook friends. Plaintiff concedes, however, that he provided his telephone number to Defendant, and that the messages he received were targeted to him based
on his relationship with another Facebook user—not sent randomly or based on any pre-ordained numerical sequence. Plaintiff does not even try to explain how or why Defendant would seek to send such a message “us[ing]” a device that “generates” numbers randomly or in a numerical sequence. Instead, Plaintiff pursues an impermissible effort to re-write the language of the statute itself. In Plaintiff’s telling, a device “‘us[es] a random or sequential number generator’” whenever it stores numbers in a “random or sequential order.”
Opening Brief (“OB”) 24-26 (emphasis added) (quoting Duguid, 141 S. Ct. at 1169); ER-53–54 (¶¶ 73, 75, 76-78). As the District Court here, the Eighth Circuit, and this Court in an unpublished opinion have all rightly concluded, that theory is baseless. Most fundamentally, it cannot be reconciled with the plain text of the provision. Plaintiff simply reads the word “generator” out of the provision altogether and replaces it with a word (“order”) that is found nowhere in the statute. That alone is enough to reject Plaintiff’s novel interpretation. Statutory interpretation must “begin[] with the statutory text,” and when that text is unambiguous—as the ATDS definition is here—the interpretive inquiry “ends there as well.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). Moreover, Congress’s use of the word “generator” imposes a critical practical limit that “order” does not. As the D.C. Circuit has explained, “[a]nytime phone
numbers are dialed from a set list, the database of numbers must be called in some order—either in a random or some other sequence.” ACA Int’l v. FCC, 885 F.3d 687, 702 (D.C. Cir. 2018). Thus, “storing” numbers in a “random or sequential order” simply equates to storing numbers in some order—and all devices that store numbers are capable of (and indeed must) store them in some order. By replacing
the word “generator” with the word “order,” Plaintiff is asking this Court to remove the statute’s limiting term and substitute instead a word that provides no limitation at all. The result, under Plaintiff’s theory, is that any device that has the capacity to store and dial numbers in any “order” would satisfy the statutory definition. But that is the exact conclusion the Supreme Court rejected in Duguid. As the
Court made clear, that definition “of an autodialer would capture virtually all modern cell phones, which have the capacity to ‘store . . . telephone numbers to be called’ and ‘dial such numbers.’” Duguid, 141 S. Ct. at 1171 (omission in original) (quoting 47 U.S.C. § 227(a)(1)). Such an extraordinary scope, the Court explained, is flatly incompatible with the provision’s “narrow statutory design.” Id. at 1172. Unable to find support in the statutory text or the holding of Duguid, Plaintiff attempts to ground his approach in footnote 7 of the Duguid opinion. OB26. But Plaintiff’s argument rests on a tortured reading of footnote 7 that is contrary to
footnote 7 itself, the rest of the Duguid opinion, and Congress’s “narrow statutory design.” The District Court correctly rejected Plaintiff’s attempt to “achieve a result untethered to the Supreme Court’s actual holding in Duguid and untethered to the purposes underlying the TCPA.” ER-8. This Court should do the same. In short, the District Court correctly found that Plaintiff failed to plead facts suggesting that the targeted text messages at issue in this case involved any random or sequential number generation. And the Court rightly rejected Plaintiff’s invitation to disregard Duguid’s central holding, and adopt the same limitless ATDS definition that the Supreme Court squarely rejected. That sound decision should be affirmed.

Oral Argument is scheduled  before the Court of Appeals on October 22, 2022.