In a decision issued earlier today, the Northern District of California provided clarification on the TCPA’s definition of “Automatic Telephone Dialing System” (ATDS) based in part on PACE’s Amicus brief, authored by attorneys from our firm and Noble Systems (now known as “Alvaria”), filed in Hufnus v. DoNotPay, Inc., 3:20-cv-08701-VC (N.D. Cal. June 24, 2021).
Although it seemed very clear to those of us that represent the interests of call centers and their customers that the United States Supreme Court fully and finally decided the definition of ATDS, attorneys and a few courts have attempted to muddy the issue. In response, PACE filed an amicus brief providing much-needed perspective on the now infamous “footnote 7” from the Facebook v. Duguid Opinion, which the court cited in granting the Defendant’s motion to dismiss.
The crux of plaintiff’s argument was that the random or sequential number generator requirement to qualify as an autodialer was satisfied if the number generator merely selected from a preexisting list of telephone numbers. The court correctly concluded that the number generator must generate the telephone number itself, not simply select who to call from a list of telephone numbers that customers provided.
Here’s the core language from the Hufnus decision:
More generally, Hufnus’s reading of footnote 7 conflicts with Duguid’s holding and rationale. The Supreme Court explained in Duguid that the TCPA’s definition of autodialer concerns devices that allow companies “to dial random or sequential blocks of telephone numbers automatically,” not systems, such as DoNotPay’s, that randomly or sequentially dial numbers from a list that was itself created in a non-random, non-sequential way. 141 S. Ct. at 1167. The Supreme Court also explicitly stated that its opinion in Duguid was intended “to resolve a conflict among the Courts of Appeals” about the types of devices that qualify as autodialers. Id. at 1168. And DoNotPay’s platform is akin to the systems deemed to not qualify as autodialers by the Courts of Appeals with which the Supreme Court sided, because DoNotPay’s system targets phone numbers that were obtained in a non-random way (specifically, from consumers who provided them). See, e.g., Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 460 (7th Cir. 2020) (Barrett, J.) (holding that a system that “exclusively dials numbers stored in a customer database” does not qualify as an autodialer); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020) (adopting a definition of autodialer that excludes equipment that “target[s] a list of debtors” or “target[s] individuals likely to be interested in buying vacation properties”).
The platform DoNotPay used to contact Hufnus does not qualify as an autodialer under the TCPA. Hufnus’s claim thus fails as a matter of law, and dismissal is without leave to amend.
The decision is a clearly articulated and unequivocal rejection of a misleading argument plaintiffs have attempted in the wake of the Facebook decision to avoid its intended effect. We encourage defendants around the country – facing similar efforts by plaintiffs to misconstrue footnote 7 – to submit the Hufnus decision as supplemental authority where appropriate. This is a thorny issue which may be unclear to district courts at first blush, but the Hufnus Court elegantly and surgically dismantled the confusion (with PACE’s help).
* Mac Murray & Shuster serves as General Counsel to the Professional Association for Customer Engagement (PACE).
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.