Borden v. Efinancial, LLC

In determining a violation under the Telephone Consumer Protection Act (TCPA), an autodialer must have the “capacity to use a random or sequential number generator to either store or produce telephone numbers to be called.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021).

Borden alleged a violation of the Telephone Consumer Protection Act (TCPA) when he began to receive marketing messages from eFinancial, LLC (eFinancial).  Borden claimed eFinancial used an autodialer to determine the order to dial a telephone number from a stored list.  Borden appealed the district court’s dismissal and ruling that eFinancial did not use an autodialer.  On appeal, Borden argued that equipment only needs to be able to determine the order to call telephone numbers to be an autodialer.  In response, eFinancial argued that a necessary feature of an autodialer is that it randomly or sequentially generates and dials a telephone number.  In determining if equipment qualifies as an autodialer, it must have the “capacity to use a random or sequential number generator to either store or produce telephone numbers to be called.”  Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021).  The Court reasoned that, because an autodialer must be able to randomly or sequentially generate telephone numbers, eFinancial could not have used an autodialer since texts to Borden began after he provided his phone number on an insurance company website.  Affirmed.