SCOTUS Expected to Offer TCPA Clarity, After Facebook Arguments

The Supreme Court heard Facebook v. Duguid Tuesday (19-511), a case expected to provide long-awaited clarity on the definition of what's an automatic telephone dialing system under the Telephone Consumer Protection Act (see 2011100052). Consumer groups hope the court will do nothing to narrow the ATDS definition. In September, the administration supported Facebook. Lawyers for companies facing TCPA lawsuits hope the court will resolve a split in the federal circuits.

Justices noted repeatedly that the 1991 TCPA is likely ill-suited to address problems raised by modern technology. They focused on “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’”

The 7th and 11th circuits ruled that a device must generate phone numbers to be considered an ATDS. The 2nd, 6th and 9th circuits said a device can be an ATDS if it merely stores phone numbers to be called later. In a July ruling, justices upheld a 4th U.S. Circuit Court of Appeals ruling, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the law.

Congress “targeted a very specific problem” in the TCPA and “was successful in eradicating that specific technology,” said Paul Clement, lawyer for Facebook. Noah Duguid, who filed a class-action lawsuit in 2015 after receiving text messages about suspicious account activity even though he didn’t have a Facebook account, wants to use “the sense of the statute” to “repurpose the statutory prohibition to address more modern ills,” Clement said.

“It’s clear that [Congress] didn’t have in mind the modern ills,” said Chief Justice John Roberts. Duguid's side claims “the modern ills would lead to a disaster” if its interpretation isn’t adopted, Roberts said.

Justice Clarence Thomas asked why a text message should be treated as a call. “It’s not at all clear that a statute that was directed not just at calls, but also in particular an artificial or prerecorded voice calls, is really sensibly applied to texts at all,” Clement said.

Outdated?

“I’m wondering if the issue is less with … interpretation and more so with the TCPA being outdated,” said Justice Sonia Sotomayor. When TCPA was approved, “smartphones didn’t even exist. Even today, it still references pagers,” she said. Isn’t it Congress’ job “to update the TCPA to bring it in line with times?” she asked.

In 1991, cellphones “were the size of a loaf of bread, and they were not in widespread use,” Thomas said. “At what point do we say this statute is an ill fit for current technology?”

“Congressional purpose is overwhelmingly clear -- it’s privacy,” said Bryan Garner, arguing for Duguid. “Facebook would read the statute into oblivion because robocallers today use stored numbers to annoy people, just as they often did in 1991.” In its Barr decision, SCOTUS says the act "prohibits almost all unsolicited robocalls,” he said: “Facebook now argues for an across-the-board exemption -- effectively all autodialer calls and messages are exempt, they say.”

TCPA is more important because of advances in technology, Garner said. “The social media companies know exactly where you are at all times,” he said. “They know every mouse click that you’ve made for the last 20 years, and they can target in a very manipulative way.”

“This case and should end with the statutory text,” said Jonathan Ellis, assistant to the solicitor general. “Regardless of how the court resolves this case, the TCPA will continue to broadly prohibit robocalls to cellphones and residential lines.”

“If you’re saying it begins and ends with the text, that doesn’t leave much room for the FCC to adopt a different interpretation from the one you’re advancing,” Roberts said. Ellis noted the FCC has sought comment twice on the definition of ATDS, and it remains an open docket: “There’s not a lot of room for a contrary interpretation.”

The premise of the Chevron doctrine is that when “Congress deliberately chooses open-ended language or vague language, it has implicitly delegated to the agency a range of discretion to make the choice,” said Justice Amy Coney Barrett. The “thorny” language in the TCPA “doesn’t strike me as reflecting an implicit congressional choice to delegate to the FCC how to regulate this,” she said.

Concerns about robocalls “shouldn’t drive the court’s analysis,” Ellis said. “The question is what the statute meant in 1991.”

Reaction

"Justices were very engaged and it appears that the Court intends to address the question head-on, which would be good for all involved in TCPA litigation,” emailed Kelley Drye’s Steve Augustino. “They asked tough questions of both sides regarding the grammar of the ATDS definition, but a majority appeared to agree that the Ninth Circuit’s reasoning … was too broad because it swept in ordinary smartphones used in typical ways.” Thomas’ questioning “was notable for his concern that the TCPA’s autodialer definition was ‘ill-fitting for current technology,’” he said.

The justices were “highly skeptical” of Garner’s arguments, said Becca Wahlquist of Snell & Wilmer, who defends clients in TCPA lawsuits. “The justices seem to recognize that the 1991 statute wasn’t contemplating the kinds of technologies that are currently in use,” she told us. “There was a specific kind of technology that was being targeted and that that technology is no longer in use shows that the statute was effective and you don’t just expand to cover everything,” she said. Justices know the decision will “impact a lot of litigation across the country,” she said.

Clarity is likely on the core ATDS definitional issues “that have lingered unresolved for far too long,” Hogan Lovell’s Mark Brennan told us. “I'm optimistic that they will issue a decision that provides some much-needed clarity for consumers and callers alike.” As expected, “grammar was central to the discussion, and the justices still have some work to do in aligning on the statutory construction,” he said. “They explored different ways of reading the ATDS definition and grilled all three advocates on alternative constructions."

“Justices heard loud and clear that the TCPA remains absolutely essential,” said Sen. Ed Markey, D-Mass., and Rep. Anna Eshoo, D-Calif., in a statement. “By restricting robocalls to mobile phones, the TCPA prevents countless unwanted robocalls.”

“A ruling in favor of Facebook would cripple the primary bulwark that we have in the United States against invasive robocalls and texts,” said National Consumer Law Center Senior Counsel Margot Saunders. “If there is no requirement for caller consent for automated calls and texts to cell phones, then consumers will have no ability to stop the unwanted calls.”

“I’m shocked how little this argument has discussed AT ALL the reality of vexatious TCPA litigation or the work of FCC to promote technical and operational solutions to illegal robocalls,” tweeted Wiley’s Megan Brown. University of Nebraska law professor Gus Hurwitz also was “shocked” by Duguid’s arguments: “I had expected them to be stronger and much more sophisticated. They amounted to little more than ‘robocalls bad. you have to let TCPA be used against them. because robocalls bad!’”