Summary
The Ninth Circuit affirmed dismissal of a TCPA class action against Meta, holding that an autodialer under 47 U.S.C. § 227(a)(1)(A) must use a random or sequential number generator (RSNG) to actually generate the telephone numbers dialed, not merely to determine the order of pre-existing stored numbers. Following *Borden v. eFinancial, LLC*, 53 F.4th 1230 (9th Cir. 2022), the court ruled that Meta's unsolicited "Birthday Announcement" text messages did not violate the TCPA because consumers provided their own phone numbers, and the RSNG was not used to generate those numbers. The concurrence criticized *Borden* for misinterpreting "number generator" and rendering "store" superfluous, but agreed the panel was bound by circuit precedent.
Topics
Practice areas
Questions Presented
- Whether a TCPA-defined autodialer must use a random or sequential number generator to generate the telephone numbers that are dialed.
Holdings
- An autodialer must generate and dial random or sequential telephone numbers under the TCPA's plain text. Meta did not violate the TCPA because it did not use such an autodialer.
Key quotations
“We therefore hold that Meta did not violate the TCPA because it did not use a TCPA-defined autodialer that randomly or sequentially generated the telephone numbers in question.” (at 6)
“an [autodialer] must generate and dial random or sequential telephone numbers under the TCPA's plain text.” (at 3)
“an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” (at 8)
Factual background
Brickman alleged that Meta sent unsolicited 'Birthday Announcement' text messages to consumers' cell phones. Consumers provided their phone numbers directly to Facebook. Meta used an automated system to store and dial the numbers in an order determined by a random or sequential number generator, but the numbers themselves were not generated by the RSNG.
Procedural history
Brickman filed a class action against Meta in the Northern District of California, alleging that Meta violated the TCPA by sending unsolicited Birthday Announcement text messages using an autodialer. The district court dismissed the complaint with prejudice. Brickman appealed.