Trim’s Case Is ‘Perfect Opportunity’ to End ‘Mess’ of TCPA Interpretations: Cert Petition

After the U.S. Supreme Court’s 2021 opinion in Facebook v. Duguid, a “plethora” of courts have attempted to interpret the definition of an automatic telephone dialing system under the Telephone Consumer Protection Act (TCPA) in the “context” of Facebook’s holding, said appellant Lucine Trim’s cert petition. The petition, filed Nov. 6 and docketed Nov. 9 as case number 23-495, according to a clerk’s notice posted Monday, seeks to set aside the 9th Circuit’s affirmation of the district court’s dismissal of her TCPA complaint against Reward Zone (see 2308090027).

Courts across the country “have come to different conclusions” after Facebook about defining an ATDS under the TCPA “from interpreting the same law,” said the petition. “The result has been nothing short of a mess,” it said. SCOTUS held in Facebook that auto dialers are defined by their function to either store or produce telephone numbers from a random or sequential number generator.

Many of those courts’ conclusions would “eviscerate” the TCPA’s autodialer provisions, rendering them “inapt” because there’s no such thing as a random or sequential telephone number generator, said the petition. Such holdings by courts “ignore the unambiguous technical meaning of the plain language Congress employed in drafting the TCPA,” it said.

Many of those conclusions, including the 9th Circuit’s 2022 opinion in Borden v. eFinancial, “are contrary to Facebook,” said the petition. SCOTUS should grant cert “to resolve these issues,” it said. Lucine Trim’s case “presents the perfect opportunity to do so,” it said.

The district court’s judgment, and the 9th Circuit’s affirmation of that judgment, “comes from a motion to dismiss,” said the petition. It thus involves “no factual findings, no disputes of fact, no procedural issues, and no jurisdictional issues,” it said. “The questions presented are purely legal questions of statutory interpretation,” it said.

Trim provides “detailed factual allegations” in her complaint about how the autodialer software was programmed with number generators, said the petition. That includes “the very computer code which gives rise to her allegations that a sequential number generator was used to store and produce telephone numbers to be called,” it said.

Such a “rich and detailed record” creates an “ideal backdrop” for SCOTUS to answer contested questions about the definition of an ATDS "once and for all," said the petition. Doing so would “put an end to a question that has plagued courts, attorneys, regulators, companies and consumers for decades,” it said.

The “varying interpretations” of Section 227 of the TCPA “have confused judges, muddied the legal standards, and created chaos for plaintiffs and defendants alike,” said the petition. As the law currently stands, whether the allegations in Trim’s third amended complaint are sufficient to survive a motion to dismiss “depends purely” on the circuit in which she files her case, “and the judge assigned to her case,” it said.