So it has been just over two and a half years since the U.S. Supreme Court decided Facebook–a ruling unanimously holding that a system is not an ATDS for TCPA purposes unless it uses a random or sequential number generator (ROSNG) to “store or produce” telephone numbers to be dialed.

Since then the Courts have–no surprise–struggled to apply this ruling. There are basically two camp currently:

1. Only the production of random telephone numbers triggers the statute; and
2. The production of any number in connection with the sequencing of telephone numbers triggers the statute.

The first camp is epitomized by the Ninth Circuit’s ruling in Borden—which, as we warned you, might be the biggest trap in legal history.

The second camp doesn’t have a sponsor yet at the appellate court level, although numerous district courts have so held.

There is also the strange Panzarella ruling, which does not answer the question directly but holds “capacity” does not matter and only the use of an ROSNG to do…something, matters.

So the new request is brought by the unsuccessful Plaintiff in the Trim v. Rewards Zone case we reported on recently. There the Ninth Circuit Court of Appeals issued a CRITICAL ruling that text messages are not prerecorded voice calls– but it also made short work of an ATDS challenge holding its previous ruling in Borden tied its hands.

Plaintiff is leaving the prerecorded voice issue alone, but wants a redo on ATDS claims. Specifically Trim is seeking a Supreme Court review via a writ petition seeking an answer on the following question:

Does the plain language of the Telephone
Consumer Protection Act’s (“TCPA”) definition of an
Automatic Telephone Dialing System (“ATDS”) at 47
U.S.C. § 227(a)(1), and this Court’s holding in Facebook,
Inc. v. Duguid, 141 S. Ct. 1163 (2021), require a plaintiff
to allege that telephone dialing equipment uses a number
generator to generate the telephone numbers themselves,
or does it merely require the use of a random or
sequential number generator to store or produce
telephone numbers to be called?

That’s a pretty compelling question since the Supreme Court literally already answered it–and in Plaintiff’s favor!

Hmmm.

The petition goes on to discuss the tangled web of ATDS cases that have followed the Supreme Court ruling. But the truth is there does not appear to be the split of authority at the circuit court level that you usually see leading up to a SCOTUS review. Instead the Ninth Circuit Court of Appeals just plain got it wrong–sorry, but it did–again just in the opposite direction it got it wrong the first time in Marks. 

In any event this is a fascinating petition and we will keep a very close eye on it.

You can read the entire thing here: Trim Cert Petition