The Telephone Consumer Protection Act is a major source of consumer privacy litigation against companies that engage in telemarketing. This past year, there was little change in the status quo of what constitutes an autodialer under the Act—which this blog has previously noted has long been a focal point of TCPA litigation; though, as we discuss below, this continued to be an active area of litigation under the law. Federal courts were more receptive to plaintiffs’ somewhat expansive interpretations of other TCPA provisions, including those that prohibit sending unsolicited advertisements to fax machines and making telephone solicitations to individuals on a do-not-call list.¹ However, the most noteworthy TCPA litigation development of 2024 was the U.S. Supreme Court’s decision to grant cert in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., which asks whether, under the Hobbs Act, district courts are bound by the FCC’s interpretations of the TCPA.²

This article highlights notable TCPA trends from the past year, with a focus on cases on the issue of what constitutes an ATDS and unsolicited advertisements and solicitation cases, as well as an overview of the Supreme Court’s decision to grant cert in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.³ You can stay up to date with all of our writings on this topic and others by subscribing to the WilmerHale Privacy and Cybersecurity Blog.

Automatic Telephone Dialing System (ATDS) Cases

The TCPA generally prohibits using an automatic telephone dialing system (“ATDS”) to call or text consumers without their prior express consent. The TCPA defines an ATDS as “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator.”⁴ Prior to the Supreme Court’s 2021 decision in Facebook v. Duguid, plaintiffs suing under the TCPA’s private right of action argued for an increasingly expansive understanding of an ATDS. Indeed, the Court in Duguid noted that the plaintiff’s proposed interpretation of the term was so expansive as to “capture virtually all modern cell phones.”⁵ The Duguid Court ultimately adopted a narrowing interpretation and held that to be an ATDS, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.⁶

In 2024, plaintiffs persisted in trying to expand what qualifies as an ATDS without running afoul of Duguid but by and large they were unsuccessful. The Second, Third, and Ninth Circuits all resoundingly rejected plaintiffs’ arguments that devices that randomly generated numbers for the purpose of sequencing calls to or selecting from previously-stored phone numbers were ATDSs—defending Duguid’s narrowing of the term.

In Perrong v. Montgomery County Democratic Committee, the Third Circuit affirmed dismissal of Perrong’s claim alleging that Defendants, who called Perrong to urge him to vote for Democratic political candidates, had unlawfully done so using an ATDS.⁷ Perrong asserted that the device used to call him was an ATDS because it used a number generator to determine the order in which to call a preexisting list of contacts. The court disagreed, stating that Plaintiff’s reliance on footnote 7 of the Duguid opinion took that footnote “completely out of context” and that Third Circuit precedent did not support the assertion that a device making calls in this way (so-called “list-mode” calls) constitutes an ATDS.

The Second Circuit similarly concluded in Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., that a system that used random or sequential number generation only to select phone numbers from a preexisting list was not an ATDS.⁸ In that case, Subway advertisers did not generate Ms. Soliman’s phone number—rather, she had previously provided it to them so that she would be notified of future promotional deals. Likewise, in Davis v. Rockloans Marketplace, LLC, the Ninth Circuit agreed with the district court that Plaintiff failed to plausibly allege that Defendant, Rockloans, used an ATDS to place more than a hundred debt collection calls to her cell phone because Davis had given Rockloans her phone number.⁹

Unsolicited Advertisement and Telephone Solicitation Cases

In 2024, whereas Duguid was a meaningful obstacle to plaintiffs’ arguments for expanding liability for use of an ATDS, arguments for more liberal readings of other TCPA provisions made more headway. The TCPA and its implementing regulations impose liability for certain unsolicited advertisements sent to fax machines and certain telephone solicitations.¹⁰ Claiming violations of these provisions has become more attractive for plaintiffs post-Duguid because they do not require that the unlawful communications be made using an ATDS.

Under the TCPA, an unsolicited advertisement must “advertis[e] the commercial availability or quality of any property, goods, or services.”¹¹ A telephone solicitation must have “the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.”¹² At their core, these definitions require that the outreach create an opportunity for the contacting party to profit from the party being contacted. And in 2024, plaintiffs succeeded in claiming that communications that would only indirectly bring about payment by the contacted party to the party engaged in marketing still fell within the TCPA’s scope.

In Family Health Physical Medicine, LLC v. Pulse8, LLC, the Fourth Circuit held that Plaintiff stated a plausible theory for relief by alleging that a fax it received from Defendant, Pulse8, about its free webinar on documenting medical conditions was an advertisement because, although free, the webinar had a “commercial nexus” to Pulse8’s business, selling medical coding software.¹³ Plaintiff also plausibly alleged that the fax was an advertisement because in order to enroll in the free webinar, Plaintiff had to provide its contact information and consent to receiving Pulse8 promotional materials, paving the way for future sales pitches.¹⁴

The court in Cacho v. McCarthy & Kelly LLP concluded that phone calls Mr. Cacho received from a law firm urging him to use its services under a contingency fee arrangement were actionable telephone solicitations under the TCPA.¹⁵ The court rejected using “rigid formalism to decide whether the calls sought to encourage a purchase of services,” and determined that although the firm’s fee was contingent and might literally be paid by the opposing party, the calls still encouraged Plaintiff to purchase Defendant’s legal services by “direct[ing] a portion of [his] future right to payment to Defendant.”¹⁶

TCPA Before the Supreme Court

The Supreme Court’s decision to grant cert in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.,¹⁷ will almost certainly prove to be the most impactful TCPA litigation development of 2024.

The case began as a class action alleging that Defendant McKesson faxed unsolicited advertisements to Plaintiffs in a manner that violated the TCPA. While the case was ongoing, the FCC ruled that faxes transmitted using an online fax service fell outside the TCPA’s prohibition. The district court treated the ruling as binding and, because Plaintiffs could not identify which of the faxes they received had been sent using an online fax service, as opposed to traditional fax, the court decertified the Plaintiffs’ class. The Ninth Circuit affirmed.¹⁸

The question before the Supreme Court now is whether, under the Hobbs Act, the FCC’s interpretations of the TCPA are binding on federal district courts. Should the Court agree with the Petitioner that district courts are not bound by FCC guidance,¹⁹ a likely downstream effect, which Respondents alluded to,²⁰ will be more litigation and a multiplicity of TCPA interpretations at the district court level in the years ahead. The Court heard oral arguments in the case on January 21, 2025, and its opinion is forthcoming.

1. See Telephone Consumer Protection Act, 47 U.S.C. §§ 227(b)(1)(C), 227(c); 47 C.F.R. § 64.1200.
2. True Health Chiropractic, Inc. v. McKesson Corp., No. 22-15710, No. 22-15732, 2023 WL 7015279 (9th Cir. Oct. 25, 2023), cert. granted sub nom. McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 116 (2024) (No. 23-1226).
3. True Health Chiropractic, Inc. v. McKesson Corp., No. 22-15710, No. 22-15732, 2023 WL 7015279 (9th Cir. Oct. 25, 2023), cert. granted sub nom. McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 116 (2024) (No. 23-1226).
4. 47 U.S.C. § 227(a)(1).
5. Facebook, Inc. v. Duguid, 592 U.S. 395, 405 (2021).
6. Id. at 409.
7. Perrong v. Montgomery Cnty. Democratic Comm., No. 23-2415, 2024 WL 1651274, at *2 (3d Cir. Apr. 17, 2024).
8. Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., 101 F.4th 176, 186 (2d Cir. 2024).
9. Davis v. Rockloans Marketplace, LLC, No. 23-2593, 2024 WL 4345293, at *1 (9th Cir. Sept. 30, 2024).
10. See 47 U.S.C. §§ 227(b)(1)(C), 227(c); 47 C.F.R. § 64.1200.
11. 47 U.S.C. § 227(a)(5).
12. Id. § 227(a)(4).
13. Fam. Health Physical Med., LLC v. Pulse8, LLC, 105 F.4th 567, 570-73 (4th Cir. 2024), cert. denied, No. 24-327, 2024 WL 5112290 (Dec. 16, 2024).
14. Id. at 574.
15. Cacho v. McCarthy & Kelly LLP, 739 F. Supp. 3d 195, 208-12 (S.D.N.Y. 2024).
16. Id. at 209-10.
17. True Health Chiropractic, Inc. v. McKesson Corp., No. 22-15710, No. 22-15732, 2023 WL 7015279 (9th Cir. Oct. 25, 2023), cert. granted sub nom. McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 116 (2024) (No. 23-1226).
18. Id. at *2.
19. See Brief for Petitioner at 15, McLaughlin Chiropractic Assocs., 145 S. Ct. 116 (No. 23-1226).
20. See Brief for Respondents at 33, McLaughlin Chiropractic Assocs., 145 S. Ct. 116 (No. 23-1226).