Autodialers and the ATDS definition after Duguid

The history of how that question was fought is the history of the TCPA's second decade.

The statutory definition

The definition was written in 1991 for machines that generated numbers and dialed them in sequence, reaching hospital lines and pagers by accident. By the early 2000s, telemarketing had moved to predictive dialers that called from customer lists and routed answered calls to agents. Whether those dialers were ATDSs became the central question in TCPA litigation, because § 227(b)(1)(A) prohibits ATDS calls to cell phones without consent, and an ATDS finding converts a list-dialing campaign into a per-call statutory damages case.

The FCC's readings, 2003 to 2015

In its 2003 order the FCC concluded that predictive dialers fell within the definition, reasoning that the hardware was capable of generating numbers and that the "basic function" of such equipment was to dial numbers without human intervention. It reaffirmed that view in 2008. In the 2015 omnibus declaratory ruling it went further, holding that equipment was covered if it had the potential capacity to generate random or sequential numbers, even if that would require modification. Critics pointed out that this made every smartphone an ATDS.

ACA International v. FCC, 2018

The D.C. Circuit set aside the 2015 ruling's treatment of autodialers as arbitrary and capricious. The court held that the FCC's "capacity" reading was unreasonably expansive and that the Commission had given inconsistent guidance on whether a device must itself generate random or sequential numbers. The decision did not say what the definition meant. It left that to the courts.

The circuit split

Between 2018 and 2021 the courts of appeals divided. The Ninth Circuit in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), read the definition to cover equipment that stores numbers and dials them automatically, whether or not a random or sequential generator was involved. The Second and Sixth Circuits took similar approaches. The Third, Seventh and Eleventh Circuits read the generator clause as modifying both "store" and "produce", so that list-based dialers were outside the definition; the Seventh Circuit's opinion in Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020), set out the grammatical analysis the Supreme Court would later adopt.

Facebook, Inc. v. Duguid, 592 U.S. 395 (2021)

Noah Duguid received security-notification texts from Facebook for an account he did not have. He sued under § 227(b)(1)(A), alleging the texts were sent by an ATDS. Facebook's system sent messages to numbers stored in its database in response to account activity; it did not generate numbers randomly or sequentially. The Ninth Circuit, following Marks, allowed the claim. The Supreme Court reversed unanimously.

Justice Sotomayor's opinion held that the clause "using a random or sequential number generator" modifies both "store" and "produce". To qualify as an ATDS, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using such a generator. The Court rejected the argument that this reading made the statute obsolete, noting that § 227(b)(1)(A) also prohibits artificial or prerecorded voice calls, and that Congress could update the definition if it chose.

After Duguid

Three things followed. First, ATDS claims against list-based dialers declined sharply in federal court, and litigation shifted toward the prerecorded-voice prong, the do-not-call rules, and consent. Second, a footnote in Duguid left open whether a dialer that uses a random generator to decide the order in which it calls stored numbers is an ATDS, and lower courts have divided on it. Third, several states responded by enacting or amending statutes with broader definitions. Florida's 2021 amendment to the Telephone Solicitation Act covered an "automated system for the selection or dialing of telephone numbers", a phrase Florida narrowed again in 2023. Oklahoma copied the Florida model in 2022.

What it means in practice

For a caller, Duguid narrows one prong of one subsection. It does nothing for a prerecorded or artificial voice call, which still needs consent regardless of how the number was dialed. It does nothing for a call to a number on the National Do Not Call Registry, which is governed by § 227(c) and the FCC's rules. It does nothing for a text to a Florida number under the FTSA, or for a call to a number on the caller's own internal list. In litigation, the question of how a dialer selects and dials numbers is now a factual one answered from the system's documentation, and a caller who cannot describe its own dialer is in a poor position to argue about it.