Briefs in support of Facebook focus on the need to modernize language in the law when it comes to the definition of an ATDS. Editor’s note: This article is available for members only.
9/15/2020 17:00
Thirteen groups filed briefs supporting Facebook Inc.’s appeal in Facebook Inc. v. Duguid, a case that focuses on the definition of an automatic telephone dialing system (ATDS) in the Telephone Consumer Protection Act.
This includes an amici curiae brief from ACA International and a group of industry trade associations advocating for legal clarity when using modern methods to communicate with consumers.
Facebook’s appeal in the case, set to be heard by the U.S. Supreme Court during its term that starts in October, could have a significant impact on defining what is considered an ATDS under the TCPA.
The TCPA did not intend to chill normal business communications that consumers expected, according to the brief from ACA, the U.S. Chamber of Commerce, Business Roundtable, American Bankers Association, American Financial Services Association, Consumer Bankers Association, Edison Electric Institute, Insights Association, Internet Association, Mortgage Bankers Association and National Association of Federally-Insured Credit Unions. The 9th Circuit’s ruling violates the First Amendment by imposing overly broad speech restrictions through, among other things, including smartphones in the definition of an ATDS. An overly broad ATDS definition also creates problems relating to reassigned numbers and revocation of consent.
ACA members may read more on the brief from ACA and the industry trade associations here.
Following are highlights from additional briefs filed in the case:
- Washington Legal Foundation – The TCPA has been nonsensically interpreted for many years, most notably evidenced by the FCC’s conclusion that “text messages” qualify as “calls” under the statute. In bringing the ATDS definition back in line, the court should remind lower courts and the FCC to recalibrate other rulings, such as the treatment of text messages.
- Professional Association for Customer Engagement and Noble Systems Corporation – Modern transistorized digital electronics inherently store a number in order to process calls, whereas older technologies don’t. Therefore, the 9th Circuit’s construction of “store” is anachronistic. Contemporaneous patents show this.
- Credit Union National Association Inc. – Credit unions have a unique relationship with their members and communicate a wide range of non-marketing information. Congress did not really concern the TCPA with informational calls from companies placing non-marketing calls to individuals with whom they had business relationships. An overly broad ATDS definition has not mitigated robocalls.
- Portfolio Recovery Associates LLC – The 9th Circuit’s expansion of the ATDS ban to cover a wide swath of common communications methods would render that ban unconstitutionally overbroad in violation of the First Amendment.
- Midland Credit Management Inc. and Encore Capital Group Inc. – The legislative intent of the TCPA reflects that Congress disfavored only specific types of calls: those that (1) tied up lines for emergency communications that were dialed randomly; or (2) blocked lines assigned to nursing homes, and other facilities with multiple lines dialed sequentially (emphasis added).
- Health Care Companies – Health care companies increasingly rely on cellphones to reach members, particularly vulnerable members, many of which are at the government’s behest. Congress did not construe the ATDS provision to apply to live calls from preexisting lists of numbers. Rejecting the 9th Circuit’s reading would avoid constitutional problems under the First Amendment.
- “On-Demand” Technology Platforms – The 9th Circuit’s ruling sweeps in modern cutting-edge technologies that were unforeseeable when the TCPA was enacted in 1991, would penalize good-faith conduct and impose vicarious liability on upstream partners.
- Life Insurance Direct Marketing Association, American Property Casualty Insurance Association and Consumer Credit Industry Association – The insurance industry relies on text messages to communicate with consumers.
- Quicken Loans – Live calls to a specific recipient who was not randomly chosen are not robocalls. The TCPA is not effective in stopping unwanted calls and is instead being used to punish legitimate callers. Limiting the TCPA to its original scope will not exacerbate robocalls because other measures are in place to combat them.
- Retail Litigation Center – The 9th Circuit decision would yield significantly bad consequences, including penalizing valuable communications, chilling pro-consumer communications, and discouraging communications that consumers want.
- Salesforce – The 9th Circuit’s ruling would undermine Salesforce’s platform. It would also violate the canon of constitutional avoidance. Its reading of the TCPA would conflict with the First Amendment by restricting the free flow of information in a way that is not remotely tailored to Congress’s goal of preventing unsolicited calls.
Duguid’s response to the briefs is due Oct. 16, and amicus briefs in support of Duguid are due Oct. 23.
Petitioners in Facebook Inc. v. Duguid also turned in briefs in the case this month, notably with support from the U.S. government of a narrow interpretation of the TCPA and the definition of an ATDS.
The government’s brief from the U.S. Department of Justice argues that the judgment by the U.S. Court of Appeals for the 9th Circuit should be reversed.
“Under the TCPA, a device is an ‘automatic telephone dialing system’ only if it has the capacity to use a random or sequential number generator to store or produce telephone numbers,” the government’s brief states. “Various features of that language indicate that the participial phrase ‘using a random or sequential number generator’ modifies both of the verbs ‘store’ and ‘produce.’ When a modifying phrase appears at the end of a list, the phrase typically modifies each item within the list rather than only the last item. The fact that the phrase ‘using a random or sequential number generator’ is set off by a comma reinforces that inference.”
Facebook also filed a brief in the case Sept. 4, noting the semantics of the TCPA and the same comma placement highlighted by the government in its brief.
“The plain text and basic rules of construction and grammar resolve this case,” the Facebook brief states. “Congress defined an ‘automatic telephone dialing system’ as ‘equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.’ Under ordinary rules of grammar and canons of construction, the phrase ‘using a random or sequential number generator’ cannot be decoupled from the verb ‘store,’ but instead modifies both ‘store’ and ‘produce.’”
Circuit courts remain split on the issue.
The Supreme Court will start its next term in October and has not set dates for oral arguments in Facebook Inc. v. Duguid.
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