Specifically, in footnote 7, Duguid stated: “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. at 1233īut Judge VanDyke reasoned that Borden’s interpretation of autodialer overlooks that the phrase “random or sequential number generator” has a known meaning as a computational tool which is not limited to generating phone numbers, as the Supreme Court of the United States acknowledged in Facebook, Inc. Specifically, Borden decided that a “random or sequential number generator” in the definition must mean a “random or sequential phone number generator” because the other times that the word “number” is used in the definition clearly refer to a phone number. Judge VanDyke issued a concurring opinion recognizing that the Ninth Circuit was compelled to follow Borden’s precedent, but also disagreeing with the precedent because it concluded that the word “number” means the same thing in all instances where it appears in the TCPA’s definition of an autodialer. ![]() Thus, the Ninth Circuit affirmed the judgment of the trial court. This is true regardless of whether the numbers are stored or produced. means a telephone number.” Borden, 53 F.4th at 1233. Borden 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’. ![]() But the Ninth Circuit observed that the Borden panel did not limit its holding to the “production” prong. The plaintiff countered that Borden did not control the outcome here because he said that Borden addressed the “production” prong of §227(a)(1)(A), not the “storage” prong at issue here. Therefore, the Ninth Circuit here concluded that the defendant here also did not violate the TCPA because it did not use a TCPA-defined autodialer that randomly or sequentially generated the telephone numbers in question. 2022), which held that “an must generate and dial random or sequential telephone numbers under the TCPA’s plain text.” Id. The question on appeal was whether a TCPA-defined autodialer must use an RSNG to generate the telephone numbers that are dialed.ĭuring the Ninth Circuit’s deliberations, another panel of the Ninth Circuit decided Borden v. The statute 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 ,” and “to dial such numbers.” Id. The trial court dismissed the class action suit with prejudice, and the plaintiff timely appealed.Īs you recall, the TCPA generally bans calls made to a telephone if the call is generated by an “automated telephone dialing system,” commonly referred to as an “autodialer”. ![]() The defendant disagreed with the plaintiff’s interpretation of the autodialer provision and argued that a TCPA-defined RSNG must actually generate the phone numbers in the first instance. The plaintiff did not argue that the RSNG actually generated the consumers’ phone numbers, but that the RSNG was used to determine the order in which the phone numbers were stored and dialed. ![]() § 227, by sending unsolicited “Birthday Announcement” text messages to consumers’ cell phones he alleged that these text messages were sent through an autodialer that used a “random or sequential number generator” (RSNG) to store and dial the telephone numbers of the consumers being texted. The named plaintiff in this class action alleged that the defendant company violated the TCPA, 47 U.S.C. Court of Appeals for the Ninth Circuit recently affirmed the trial court’s dismissal of a putative class action suit brought under the federal Telephone Consumer Protection Act because another panel of the Ninth Circuit had previously held that an autodialer must generate and dial random or sequential telephone numbers under the TCPA’s plain text.Ī copy of the opinion in Colin Brickman v.
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