TCPA Autodialer Claims After Duguid: What Still Counts as an ATDS

The TCPA’s autodialer ban reaches only equipment with “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” as the Supreme Court held in Facebook, Inc. v. Duguid. Courts have held that platforms that can’t generate numbers and text only customer-supplied numbers fall outside it. In my view, a business facing an autodialer count often has a strong motion to dismiss, though prerecorded-voice and Do Not Call counts need their own answers.

What did Facebook v. Duguid decide about autodialers?

It decided that storing numbers and dialing them automatically isn’t enough. The equipment has to be able to use a random or sequential number generator to store or produce the numbers it calls.

The statute defines an “automatic telephone dialing system,” or autodialer, as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator” and to dial them, under 47 U.S.C. § 227(a)(1). Before 2021, the circuits split on whether “using a random or sequential number generator” modified both “store” and “produce.” The Ninth Circuit read it to modify only “produce,” which swept in systems that dialed automatically from a stored list.

The Supreme Court went the other way, without a dissent, on April 1, 2021. The Court wrote that reading the definition to cover any equipment that stores and dials numbers “would take a chainsaw to these nuanced problems when Congress meant to use a scalpel,” and it held that “a necessary feature of an autodialer under §227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” according to the opinion.

The FCC’s broad 2015 reading of the definition was already gone. The D.C. Circuit set it aside in ACA International v. FCC, where the court wrote, “we set aside the Commission’s explanation of which devices qualify as an ATDS.”

Duguid itself involved text messages, but in footnote 2 the Court only assumed, without deciding, that the prohibition reaches texts.

Does footnote 7 turn a list-based dialer into an autodialer?

Not in the circuits that have decided the question. The Eighth Circuit rejected the argument in March 2022, the Ninth Circuit ruled the same way that November, and the Second Circuit agreed in 2024.

Footnote 7 of Duguid explains why “store” and “produce” both have work to do in the definition. It says that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list,” per the Supreme Court’s opinion. Plaintiffs read it to mean that any system that shuffles, sorts, or queues a customer list with a random or sequential number generator is an autodialer, even if every number on the list came from a customer.

The Ninth Circuit, which covers California, rejected that theory in Borden v. eFinancial, LLC. The plaintiff had entered his number on an insurance-quote website and alleged a sequential number generator set the order of the sender’s marketing texts. The court called the plaintiff’s reading “an acontextual reading of a snippet divorced from the context of the footnote and the entire opinion” and held that “an autodialer must randomly or sequentially generate telephone numbers, not just any number.” A month later, the court applied Borden to Facebook’s birthday-announcement texts in Brickman v. Meta Platforms, Inc., affirming dismissal with prejudice.

The Eighth Circuit had reached the same place eight months earlier in Beal v. Outfield Brew House, LLC: “Like other courts, we do not believe the Court’s footnote indicates it believed systems that randomly select from non-random phone numbers are Autodialers.” The Second Circuit followed in May 2024 in Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., writing that the footnote “says nothing about whether the numbers on the preproduced list were randomly generated in the first place.”

Not every judge agrees. Judge VanDyke concurred in Brickman only because Borden bound the panel, and he wrote, “The fundamental interpretive assumption underlying the Borden decision is just wrong,” according to the Brickman opinion. A judge in Soliman dissented from the autodialer holding too. In the Ninth Circuit, Borden binds lower courts for now. In circuits that haven’t ruled, plaintiffs will keep pressing footnote 7, and I’d brief it there as a live issue, not a settled one.

Are texting platforms and list-based dialers autodialers?

Not in the appellate and district decisions discussed here. In each, what mattered was where the numbers came from and whether the system could generate numbers, not how automatically the messages went out.

In Beal, two bars used texting software that held numbers “employees manually enter,” and when a campaign ran, the software “shuffles the target contacts using a numerically-based randomizer,” as the Eighth Circuit described it. The court held that “at its bottom, Txt Live is a system that merely stores and dials phone numbers.” In Hufnus v. DoNotPay, Inc., a federal court in San Francisco dismissed a texting claim because “the platform only contacts phone numbers specifically provided by consumers during DoNotPay’s registration process, and not phone numbers identified in a random or sequential fashion.”

In my view, a business whose platform can’t generate telephone numbers, and that texts or calls only numbers its customers or leads supplied, is in a strong position, no matter how many messages the platform sends. The weaker position belongs to a company whose list was built by generating numbers, or whose vendor can’t say where the numbers came from.

My advice is to get the answer in writing before anyone sues. Ask each dialing or texting vendor for a short technical description of how numbers enter the system and whether the platform can generate telephone numbers at all. A declaration built on that description can anchor a summary judgment motion like the ones in Beal, and it’s far easier to get while the vendor relationship is friendly.

How can a defendant attack an autodialer allegation at the pleading stage?

With a Rule 12(b)(6) motion that holds the complaint to its own facts. In Borden and Hufnus, the complaints themselves described platforms picking from numbers the plaintiffs had provided, not platforms generating telephone numbers, and that was enough to end the autodialer claims.

In Borden, the Ninth Circuit affirmed a Rule 12(b)(6) dismissal because a sender choosing the order of texts to a customer-supplied list isn’t using an autodialer. Hufnus, which Borden cited, shows a court can end the claim without leave to amend: the court ruled that it “fails as a matter of law, and dismissal is without leave to amend,” per the order. When a complaint says the plaintiff signed up or supplied the number, the motion should say those facts describe targeted messages to a known number.

Some complaints also plead that an automated text is an artificial or prerecorded voice call. The Ninth Circuit affirmed dismissal of that theory in Trim v. Reward Zone USA LLC: “We hold that these text messages did not use prerecorded voices under the TCPA, because they did not include audible components.” The same opinion noted that a multimedia message could carry audio, so a text with a voice recording attached is a different case. The Second Circuit agreed in Soliman that a text without sound isn’t an artificial voice.

How can a defendant defeat an autodialer claim on the facts?

By proving what the system can do, ideally on summary judgment. That’s how Beal ended: the record showed the software could not randomly or sequentially generate phone numbers, and summary judgment was affirmed on appeal.

The Third Circuit held in Panzarella v. Navient Solutions, Inc. that “for a call to violate section 227(b)(1)(A), that call must employ either an ATDS’s capacity to use a random or sequential number generator to produce telephone numbers to be dialed or its capacity to use a random or sequential number generator to store telephone numbers to be dialed.” There, the record showed the calls went to curated borrower lists, so the claim failed even assuming the system had the capacity to generate numbers. Plaintiffs elsewhere can be expected to argue that capacity alone is enough, since Duguid speaks of capacity. Build the record on both points: what the platform can do and what it did.

Consent remains a separate defense. The statute exempts calls made with the called party’s prior express consent, and the FCC’s rules require prior express written consent for most telemarketing calls made with an autodialer or prerecorded voice. Consent from the called party, given and not revoked before the call, is a complete defense to the autodialer claim if the business can prove it, even if the system qualifies. Consent comes from the current subscriber, so a reassigned number can break it. I’d never let a strong Duguid argument crowd the opt-in records out of the defense.

What Duguid left alone: prerecorded-voice and Do Not Call claims

After noting that the statute separately bars artificial or prerecorded voice calls to home and cell phones, the Court wrote, “Our decision does not affect that prohibition,” according to the opinion. The statute doesn’t define an artificial or prerecorded voice, as the Ninth Circuit noted in Trim, but in plain terms the claim targets a call that plays a recorded or synthesized voice instead of a live person. Absent an emergency purpose or an FCC exemption, it needs the called party’s prior express consent whether or not an autodialer placed it, and if it’s telemarketing, the FCC’s rules require prior express written consent, a signed written agreement whose required terms the rules spell out. I see more exposure in this theory today than in the autodialer count.

That rule now reaches AI voices. In a February 2024 declaratory ruling, the FCC said the TCPA’s voice restrictions “encompass current AI technologies that generate human voices,” per FCC 24-17. The Hobbs Act gives the courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” final FCC orders under 28 U.S.C. § 2342(1). Whether that binds a district court to the FCC’s reading in a private TCPA suit is unsettled. The Supreme Court took the question up in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. and wrote, “We have found it difficult to answer this question,” because the answer “may depend upon the resolution of two preliminary issues.” One is whether the FCC order is an interpretive rule, in which case “it may not be binding on a district court.” The other is whether the party had a prior and adequate chance to seek review. The Court sent the case back without deciding any of it. A company using AI voice agents for outbound calls should plan as if the FCC’s ruling applies to it.

Do Not Call claims don’t involve dialing equipment at all. The private claim belongs to a person who received “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the FCC’s rules, under 47 U.S.C. § 227(c)(5). The rules bar telephone solicitations to a residential telephone subscriber whose number is on the National Do Not Call Registry, the federal list of consumers who don’t want sales calls. They also apply to “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers,” to the extent described in a 2003 FCC order, under 47 C.F.R. § 64.1200(c)(2) and (e). Whether the number belongs to a residential subscriber is itself a defense to raise. I’d value a case on these theories from the start, not on the autodialer count.

Exposure and defenses by claim

Each $500 figure applies unless actual loss is greater, and for a willful or knowing violation the court may, in its discretion, increase the award to as much as three times that amount.

Before you answer an autodialer complaint

1. Put a litigation hold on the platform’s logs, campaign settings, and consent records for every number in the complaint.
2. Pull the opt-out and internal do-not-call history for those numbers, with the date each request came in and when the number was suppressed.
3. Pull the Do Not Call Registry scrub records for the campaigns involved and the version dates of the Registry data used.
4. Collect vendor contracts, platform documentation, lead-source agreements, and any recorded or AI-generated audio.
5. Talk to a lawyer before you answer the complaint, contact the plaintiff, or make any settlement offer.

For claims involving autodialed calls and texts, the firm’s California TCPA defense page sets out what the defense looks at first.

Questions companies ask about autodialer claims

Is our texting platform an autodialer because it sends messages automatically?

No, not for that reason alone. The question is whether the platform can use a random or sequential number generator to store or produce the numbers it texts. Courts have held that platforms sending only to customer-supplied numbers don’t meet that test, but the answer depends on the platform’s actual features.

Does a shuffle or queue-order feature make our dialer an autodialer?

Not in the Second, Eighth, or Ninth Circuits, which each rejected the argument that using a number generator to order or select numbers from a customer list is enough. Beal involved software that randomly shuffled a list before sending, and it still wasn’t an autodialer.

If the autodialer count is dismissed, is the case over?

Often not. Duguid doesn’t touch prerecorded-voice claims, and Do Not Call claims never depended on the dialing equipment. The autodialer dismissal still matters. That theory needs only one call or text to a cell phone, while a Do Not Call claim needs more than one call in 12 months from the same entity in violation of the FCC’s do-not-call rules, so losing it can shrink a proposed class.

Do state telemarketing laws use the same autodialer definition?

Not always. Florida’s telemarketing statute bars unsolicited sales calls that involve “an automated system for the selection and dialing of telephone numbers or the playing of a recorded message” without prior express written consent, under Fla. Stat. § 501.059(8)(a). That wording doesn’t track Duguid’s number-generator test, so a company calling or texting Florida numbers should evaluate state exposure separately.

If your company is defending an autodialer claim

If your company has been sued over calls or texts sent through a dialer or texting platform, how the numbers entered that system often decides the autodialer count. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving autodialed calls and texts. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The Hobbs Act provision is 28 U.S.C. § 2342. The FCC’s rules are at 47 C.F.R. § 64.1200, in the eCFR version in effect on January 15, 2025. The FCC’s AI-voice ruling is FCC 24-17 (released Feb. 8, 2024). Florida’s statute is Fla. Stat. § 501.059 (2024).

The court decisions are Facebook, Inc. v. Duguid, 592 U.S. 395 (2021); PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 588 U.S. 1 (2019); ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018); Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022); Brickman v. Meta Platforms, Inc., 56 F.4th 688 (9th Cir. 2022); Beal v. Outfield Brew House, LLC, 29 F.4th 391 (8th Cir. 2022); Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., 101 F.4th 176 (2d Cir. 2024); Panzarella v. Navient Solutions, Inc., 37 F.4th 867 (3d Cir. 2022); Trim v. Reward Zone USA LLC, 76 F.4th 1157 (9th Cir. 2023); and Hufnus v. DoNotPay, Inc., No. 20-cv-08701-VC (N.D. Cal. June 24, 2021).

This post is general information about the Telephone Consumer Protection Act and related laws as of January 15, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.