By Tori Guidry
AUTODIALER COMPLIANCE
RUN !!! FOOTNOTE 7 LIVES ! Colorado District Court Holds Directly That Using An ROSNG To Determine Calling Order Triggers TCPA !
By Tori Guidry
THOSE who have gotten complacent on autodialer compliance better pay attention right now .
No burying the lead :
Based on the weight of authority and the Supreme Court ’ s dicta in Footnote 7 of Duguid , this Court finds an autodialer that stores a list of telephone numbers using a random or sequential number generator to determine the dialing order is an ATDS under the TCPA .
Scherrer v . FPT 2023 WL 4660089 ( D . Colo . July 20 , 2023 )
Wow . Never a dull moment in TCPAWorld .
So for those following along , the US Supreme Court ’ s ruling in Facebook held that an ATDS under the TCPA is a system that uses a random or sequential number generator ( ROSNG ) to “ store ” or “ produce ” telephone numbers to be dialed .
In Footnote 7 , the court held that one such system is a dialer that uses an ROSNG to determine the sequence in which numbers are dialed . ( You can read all about these issues on our Facebook Ruling Resource page on our website , TCPAWorld . com !)
Nonetheless , recent cases have essentially disregarded Footnote 7 and found only systems that randomly generate — as opposed to store — telephone numbers to be dialed trigger the statute . So says the Ninth Circuit . And so said another court just last week .
But the court in Scherrer took a very different approach .
Recognizing that the Supreme Court ’ s Facebook ruling actually did not hold that phone numbers had to be randomly or sequentially generated to trigger the TCPA , the Scherrer Court looked to Footnote 7 ’ s “ dicta ” as a valid example of when a system might use an ROSNG to “ store ” phone numbers to be dialed .
In Footnote 7 , the Duguid Court gave an example of an autodialer that might store telephone numbers using a random or sequential number generator . Id . at 1172 n . 7 (“ 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 .”). The Supreme Court ’ s own words demonstrate it had more in mind in terms of what may constitute an autodialer beyond the single patented device discussed in the Amici Curiae brief . And nothing in the text of the opinion or Footnote 7 suggests the Supreme Court ’ s patent example was exclusive .
Plus the Scherrer Court was completely unmoved that the Pace Amicus Brief — that lead to the creation of the Footnote 7 loophole to begin with — was limited to randomly dialed numbers :
It is true that the specific patent discussed in the Amici Curiae brief was
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