How do courts determine if a dialer is an autodialer?

The Supreme Court's decision in Facebook v. Duguid finally set a consistent precedent for how to interpret the TCPA's definition of an ATDS: “The capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” However, the practical application of this definition to specific dialers can still be confusing.

An October 2021 decision by the Southern District of California Court in Wilson v. Rater8 offers a useful precedent for answering this question. In dismissing the plaintiff's ATDS claims, the court identified six potential factors in determining if a device is an autodialer:

1. “the nature of the message” with a generic, impersonal, or promotional message suggesting ATDS;
2. “the number or frequency of messages, ” with “repetitive messages sent over a short period of time” suggesting ATDS;
3. “[t]he ability to respond to or interact with the text messages (i.e., sending ‘Stop'), ” with interactivity of this character suggesting use of an ATDS;
4. “the relationship between the parties, ” with a pre-existing relationship weighing against ATDS;
5. whether identical messages were sent to multiple numbers simultaneously;
6. whether the message was sent from a SMS short code or long code, with a SMS short code suggesting an ATDS.

While this is not a definitive set of factors that every court will use in every ATDS case, it offers a useful framework for determining what courts are likely to consider.