The long-awaited argument in Facebook v. Duguid could reshape the TCPA-litigation landscape. Here is what we know going into the hearing. Editor’s note: This article is available for members only.
12/4/2020 10:30
If you have Dec. 8 circled in red on your calendar, then you know it’s time for the U.S. Supreme Court’s oral argument in the Facebook v. Duguid case, which could define what is considered an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act.
Could this be the beginning of the end to one of the top factors that drives TCPA litigation in the accounts receivable management (ARM) industry? Time will tell, but there are a few key points to know going into the hearing.
- Since the case came onto the SCOTUS scene, one of the new players on the court is Justice Amy Coney Barrett. Barrett comes to the Supreme Court from the U.S. Court of Appeals for the 7th Circuit, where she notably issued narrow readings in TCPA cases, including Gadelhak v. AT&T Services Inc. Barrett’s case record on industry statutes, including the TCPA and Fair Debt Collection Practices Act, proves to be in line with industry priorities on modernizing the laws and compliance guidelines for businesses to meet consumers’ expectations for technology and communication while ensuring protections are in place, ACA International previously reported.
- ACA has been advocating for the Supreme Court to take action to resolve this issue, and thereby limit frivolous litigation in this area for ACA members going forward. ACA joined industry trade groups in filing an amici curiae brief in the Facebook case advocating for legal clarity when using modern methods to communicate with consumers. Read more on the brief here.
- Thirteen groups filed briefs supporting Facebook’s appeal in the case, notably with support from the U.S. government of a narrow interpretation of the TCPA and the definition of an ATDS. Much of the argument in the Facebook case focuses on the decision from the U.S. Court of Appeals for the 9th Circuit in Marks v. Crunch San Diego LLC, which resulted in a ruling that an ATDS includes dialing equipment that merely has the capacity to store numbers and dial them automatically, expanding the definition broadly to include anything coming from a list. 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.
- Facebook has maintained that the court must adopt a narrow, straightforward reading of the statutory definition of an ATDS: “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” Pointedly, Facebook’s reply brief doubles down on its argument that “decoupling” the verb “store” from the technology that makes an ATDS automatic, as Duguid would have the court do, would expand the TCPA’s scope “exponentially, reaching every smartphone and raising serious First Amendment concerns.”
- In October, respondent Noah Duguid argued in his reply brief that—after one applies an exceedingly complex semantic argument based on the grammatical concept of “synesis”—the statutory term ATDS ought to be read to include any system that automatically dials telephone numbers, regardless of “whether those numbers are stored or generated by the system.” In short, Duguid has pressed the court to adopt an expansive reading of the statute that would be in keeping with the 9th Circuit’s interpretation of ATDS first expressed in Marks v. Crunch San Diego, LLC.
- In September, the ACA Huddle discussion covered that the briefs in support of Facebook’s appeal and past circuit court decisions are favorable for the accounts receivable management industry.
- ACA and its coalition partners are also monitoring the FCC’s activity with the TCPA and mitigating robocalls as it implements components of the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) required by Congress. However, it has not made any movement on the definition of an ATDS since the decision in ACA International v. FCC in 2016.
- The leadership of the FCC could also impact its decisions on the TCPA next year. Republican Chairman Ajit Pai is resigning on Jan. 20, 2021, and Democrat leadership on the commission could cause stricter interpretations of the TCPA. Unlike Pai, Democrat Commissioner Jessica Rosenworcel, one of the many players who could be appointed chair, has said the 2016 order on the TCPA did not go far enough in restricting robocalls.
It will be a busy week at the Supreme Court with this case and the Collins v. Mnuchin, case on deck , but one that could shed light on prominent issues for the ARM industry in 2021 and beyond. ACA will provide updates for members in ACA Daily and on ACA mobile.
For more on the oral argument, don’t miss the ACA Huddle Dec. 9. Two industry leaders will share what they learned from the Dec. 8 Facebook v. Duguid oral argument before the U.S. Supreme Court and the potential impact on the definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act in ACA International’s next ACA Huddle webinar for members.
Don’t miss the webinar at 11 a.m. CST Dec. 9 with David Kaminski, partner at Carlson & Messer LLP, and Skip Kohlmyer, partner at Shepard, Smith, Kohlmyer & Hand.
The ACA Huddle is a members-only event and a one-time Zoom registration is required. After registering, you will receive a confirmation email containing information about joining the webinar. If you have any questions about the log in process, please contact [email protected].
Thank you to the ACA Huddle sponsors BillingTree, Text Request, Collectors Insurance Agency Inc. and Solutions By Text.