In Borden v. Efinancial, Ltd. Liab. Co., No. 21-35746, 2022 U.S. App. LEXIS 31613, at *3-4 (9th Cir. Nov. 16, 2022), the Court of Appeals for the 9th Circuit found that to be an ATDS, the system must randomly or sequentially generate telephone numbers, not other sorts of numbers. So a system that selects telephone from a previously entered list of telephone numbers is not an ATDS even if the system automatically generates the ID numbers assigned to each telephone number on the stored list of telephone numbers.
Before Duguid, some circuits held that equipment could qualify as an autodialer just because it autodialed stored phone numbers that had not been randomly or sequentially generated in the first instance. See, e.g., Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018). But the Supreme Court rejected this interpretation. 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,” Duguid, 141 S. Ct. at 1173, because the contrary interpretation “would capture virtually all modern cell phones, which have the capacity to store telephone numbers to be called and dial such numbers,” id. at 1171 (quotation marks and citation omitted). Borden’s interpretation would go against the Supreme Court’s holding and return this circuit back to the pre-Duguid state in which “virtually all” cell phones were at risk of violating the TCPA. The Court’s discussion of the TCPA’s policy aims also supports the view that an autodialer must be able to generate random or sequential telephone numbers. It noted that autodialers had “revolutionized telemarketing by allowing companies to dial random or sequential blocks of telephone numbers automatically.” Id. at 1167 (emphasis added). Besides annoying consumers, the autodialer “threatened public safety by ‘seizing the telephone lines of public emergency services, dangerously preventing those lines from being utilized to receive calls from those needing emergency services.'” Id. (quoting H.R. Rep. No. 102-317, at 24 (1991)). And it could “simultaneously tie up all the lines of any business with sequentially numbered phone lines.” Id. But these concerns would not matter under Borden’s interpretation of the TCPA. Using a random or sequential number generator to select from a pool of customer-provided phone numbers would not cause the harms contemplated by Congress. Public emergency services (such as police or fire departments) would presumably not be in these customer-provided lists. And if an autodialer called the phone numbers on its customer list sequentially, it would likely not reach the sequential numbers often assigned to a single business (e.g., when a business has many phone lines that share the same area code and the first 3-5 numbers of the telephone number). The Court’s discussion of these risks would make no sense if the autodialer definition were not tailored to equipment capable of sequential or random generation of telephone numbers. Borden’s argument hinges on his interpretation of Footnote 7 in Duguid: he argues that it shows that an autodialer can generate a non-telephone number to determine the order in which to call telephone numbers from a premade list. The full text of Footnote 7 is: Duguid argues that such a device would necessarily “produce” numbers using the same generator technology, meaning “store or” in § 227(a)(1)(A) is superfluous. “It is no superfluity,” however, for Congress to include both functions in the autodialer definition so as to clarify the domain of prohibited devices. BFP v. Resolution Trust Corporation, 511 U.S. 531, 544, n. 7, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994). For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time. See Brief for Professional Association for Customer Engagement et al. as Amici Curiae 19. In any event, even if the storing and producing functions often merge, Congress may have “employed a belt and suspenders approach” in writing the statute. Atlantic Richfield Co. v. Christian, 590 U. S. —-, —-, n. 5, 140 S.Ct. 1335, 1350, n. 5, 206 L.Ed.2d 516 (2020). Id. at 1172 n.7. Borden seizes on this sentence: “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” Id. He argues that this is exactly what eFinancial did. But this is an a contextual reading of a snippet divorced from the context of the footnote and the entire opinion. See, e.g., Hufnus v. DoNotPay, Inc., 2021 WL 2585488, at *1 (N.D. Cal. June 24, 2021) (rejecting similar reading of Duguid’s footnote). Much like we do not interpret a statute by cherry-picking one word out of it, we should not pluck one sentence out of an opinion without looking at its context. Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (“Context is a primary determinant of meaning . . . . The entirety of the document thus provides the context for each of its parts.”). Borden’s myopic focus on a single sentence in a footnote-hardly a holding-ignores the broader context discussed by the Court, including how the Court itself characterized the issue as “whether an autodialer must have the capacity to generate random or sequential phone numbers.” Duguid, 141 S. Ct. at 1168 (emphasis added). In reality, Footnote 7 merely addressed how an autodialer could both “store” and “produce” telephone numbers without rendering those two terms superfluous. The Court cited an amicus brief describing patents on technology that “used a random number generator to store numbers to be called later (as opposed to using a number generator for immediate dialing).” Id. at 1172 n.7 (citing Brief for Professional Ass’n for Consumer Engagement et al. as Amici Curiae (“PACE Duguid Br.”) at 15-21). As detailed in Footnote 7, while the Court illuminated the space between the concepts of “store” and “produce,” it also recognized that “Congress may have employed a belt and suspenders approach in writing the statute.” Id. (internal quotation marks and citation omitted). Nothing in the opinion suggests that the Court intended to define an autodialer to include the generation of any random or sequential number. Indeed, the amicus brief by PACE cited by the Court disproves Borden’s reading: the “numbers from a preproduced list” mentioned by PACE were themselves randomly or sequentially generated telephone numbers. PACE Duguid Br. 19. This differentiates the PACE amicus brief’s example from the preproduced list of phone numbers used by eFinancial in which the telephone numbers were provided by customers. And it suggests that the Court, in writing Footnote 7, just like the drafters of the TCPA, used the common shorthand “numbers” to mean “telephone numbers.”
Lest the issue be deemed completely settled, the Court of Appeals for the 9th Circuit still has the Brickman case pending, oral argument on which was heard on October 22, 2022.
Oral argument in the Brickman can be watched here: https://www.ca9.uscourts.gov/media/video/?20221021/21-16785/