Defenses / Not an autodialer
Not an autodialer: the Duguid defense and the claims it does not touch
In 2021 the Supreme Court decided that an automatic telephone dialing system has to have the capacity to store or produce numbers using a random or sequential number generator. Most modern dialers and texting platforms do not. They dial from lists. That makes "not an autodialer" one of the strongest defenses to one specific claim, and no defense at all to the two claims that usually sit next to it in the same letter.
The holding
Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), was unanimous. The statutory definition at 47 U.S.C. § 227(a)(1), "equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers", requires the random or sequential number generator in both cases. A system that stores and dials numbers that a person uploaded, without generating them, is not an autodialer.
Plaintiffs have since argued that a system which uses a generator to decide the order in which stored numbers are dialed still qualifies, relying on a footnote in the opinion. Courts have divided on that argument, with most rejecting it, and it remains a live point in some districts. Expect it to be raised.
What the defense answers
One prong. Section 227(b)(1)(A) prohibits calls to a cell phone made "using any automatic telephone dialing system or an artificial or prerecorded voice" without consent. Knock out the autodialer and the ATDS theory falls. For text messages, which have no voice, this often ends the § 227(b) claim entirely.
What it does not answer
- Prerecorded or artificial voice claims. The same sentence of the statute prohibits recorded-voice calls separately. A human-dialed call that plays a recording is still a violation without consent, and the FCC ruled in 2024 that AI-generated voices are artificial voices. Ringless voicemail has been treated by the FCC as a prerecorded-voice call that needs consent. For a marketing call that means prior express written consent.
- Do-not-call claims. Section 227(c) does not mention autodialers. A live agent calling a registered number by hand is a registry violation if the other conditions are met.
- State claims. Florida's statute, Fla. Stat. § 501.059, uses its own wording for automated systems and is not bound by Duguid. Other states with their own telemarketing statutes likewise define their own terms.
A demand letter that pleads an autodialer, a recorded voice and a registry violation for the same call loses one theory to this defense and keeps two. Read the letter for which theories it actually relies on.
Proving the system is not an autodialer
The plaintiff does not have to take your word for it. In discovery they will ask how the system works. The evidence is technical: the vendor's documentation of how numbers are loaded and dialed; a declaration from someone at the vendor who can describe the architecture; your campaign configuration showing a list upload; the list itself and where it came from; any human-intervention feature (an agent clicking to dial each number) and the logs showing it was used. The absence of any number-generation feature has to be shown, not asserted. If a vendor ran the campaign, its records also decide whether "our vendor made the calls" is a defense.
Preserve the configuration as it was during the campaign. Platforms update, and a feature description from this year does not prove how the system worked two years ago.
- The vendor’s technical documentation of how numbers are loaded, stored and dialed or sent.
- A declaration from the vendor on whether the system can generate random or sequential numbers.
- Your campaign configuration and list uploads for the period in the letter.
- The source of each list, showing the numbers came from a database and not from a generator.
- Logs of any human-intervention or click-to-dial feature in use.
Questions this defense raises
Our texts were sent from a marketing platform. Does Duguid cover them?
If the platform sends to uploaded lists and does not generate numbers, the autodialer theory is weak. Marketing texts to a cell phone still need prior express written consent under the FCC’s rules for any automated system, and state statutes may define automated systems more broadly.
Does a predictive dialer count as an autodialer after Duguid?
Not merely because it is predictive. The question is whether it stores or produces numbers using a random or sequential number generator. Most list-based predictive dialers do not, but the answer depends on the specific system.
If we win on the autodialer point, is the claim over?
Only the autodialer theory. Recorded-voice, do-not-call and state claims survive on their own terms.
Can we just say the vendor told us it is compliant?
That is not evidence of how the system works. You need the technical description and someone who can swear to it.