Many welcomed the U.S. Supreme Court’s 2021 Duguid decision because it appeared to call a halt to at least some of the abuses of the Telephone Consumer Protection Act, 47 U.S.C. Section 227. See Facebook v. Duguid, 141 S. Ct. 1163. In Duguid, the court held that Facebook was not liable because the equipment it used to send the text messages at issue did not qualify as an “automatic telephone dialing system,” or ATDS, under the TCPA.

Alas, Duguid left just enough wriggle room for ATDS-based TCPA claims to persist. TCPA plaintiffs have argued that Duguid’s implications are not as broad as they first appeared, asserting that Duguid merely held that the statutory requirement of “random or sequential” number generation was to be considered only in assessing the “capacity” of the dialing equipment at issue, and that actual use of random or sequential number generation in making the specific calls at issue was not required. See, e.g., Jance v. Homerun Offer, No. CV-20-00482, (D. Ariz. July 30, 2021). In other words, they argue, calls made specifically and intentionally to a number pulled from a stored list (and thus not dialed randomly or sequentially) could still give rise to TCPA liability so long as the equipment used had the capacity—albeit untapped—to store or produce numbers using a random or sequential number generator.