10 July 2023. Tycko & Zavareei LLP’s Appellate and Class Action Practice Groups, along with co-counsel, are representing Colin Brickman before the United States Supreme Court. Mr. Brickman, on behalf of himself and other Facebook users who allegedly received millions of unwanted, automated texts, is seeking a writ of certiorari from the Supreme Court to clear up confusion among federal courts nationwide over the Telephone Consumer Protection Act’s (TCPA) restrictions on placing robocalls with automated equipment (known commonly as “autodialers”).
Mr. Brickman sued Facebook in California federal court in 2016 for sending him birthday reminders via automated text messages, even though he opted out of these reminders. Mr. Brickman argues that the TCPA prohibits such texts, but the Ninth Circuit ruled that the law’s technical definition of an autodialer doesn’t cover this type of robocalling. The Ninth Circuit’s ruling adds to a growing body of case law in federal trial and appellate courts that reaches differing opinions on the TCPA’s application to such calls. In his petition, Mr. Brickman urges the Supreme Court to take the case to resolve this confusion and correct many courts’ mistaken interpretation of an autodialer under the TCPA—a mistake that cripples the TCPA’s ability to reach telemarketing robocalls that Congress intended to prevent when it passed the law.
The definition of an autodialer is crucial to determining whether a robocall or text message is illegal under the TCPA. The TCPA prohibits companies and individuals from using automatic dialing systems to call or text people without their consent. Autodialers often use a technology called a Random or Sequential Number Generators (RSNG). Mr. Brickman asserts that many courts have been wrongly interpreting what constitutes an RSNG. Specifically, he argues that the TCPA’s definition of an RSNG includes equipment that determines the order in which numbers from a telemarketing list are to be dialed and then dials them. Some federal courts, however, have ruled that equipment doesn’t qualify as an RSNG unless it also randomly generates the numbers to be dialed as well. Mr. Brickman argues that this interpretation is supported by neither the TCPA’s text nor its legislative history.
This question is crucial in determining the TCPA’s ability to reach and restrict telemarketing robocalls. Today, most telemarketers use autodialers to call or text numbers from a prepopulated list of numbers associated with consumers they wish to target to sell their products or services, rather than to randomly generate numbers from thin air. Thus, at stake is whether the TCPA will continue to protect consumers from invasive calls and texts.
Mr. Brickman is represented by Andrea R. Gold, Hassan A. Zavareei, and Sabita J. Soneji of Tycko & Zavareei LLP and Patrick Perotti and Frank A. Bartela of Dworken & Bernstein Co. LPA.
The case is Colin R. Brickman v. United States et al., case number 23-6, before the U.S. Supreme Court.