The court will hear arguments in the case, focused on the definition of an autodialer under the TCPA, in December.
The U.S. Supreme Court will hear arguments in a landmark autodialer case, Facebook Inc. v. Duguid, on Dec. 8.
ACA International and industry trade groups are supporting Facebook’s appeal in the case, which could have significant impact on defining what is considered an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act. This is a key point of contention that drives TCPA litigation. ACA is 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.
A total of 13 groups filed briefs supporting Facebook’s appeal in the case.
Duguid’s response to the briefs is due Oct. 16, and amicus briefs in support of Duguid are due Oct. 23.
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.
In July, the Supreme Court granted a Writ of Certiorari in Facebook v. Duguid, ACA previously reported. The case, which petitioner Facebook appealed from the U.S. Court of Appeals for the 9th Circuit in October 2019, presents two questions: (1) Whether the TCPA’s prohibition on calls made using an ATDS is an unconstitutional restriction of speech and, if so, whether the proper remedy is to broaden the prohibition to abridge more speech, and (2) whether the definition of an 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 grant of certiorari applies only to the second question presented by the petition pertaining to the definition of an ATDS. That question had been left open—at least according to some courts—in the wake of ACA International v. FCC, which expressly invalidated the FCC’s 2015 declaratory ruling that broadly defined an ATDS.
On Sept. 4, petitioners in the case also turned in briefs, notably with support from the U.S. government through the DOJ supporting a narrow interpretation of the definition of an ATDS in the TCPA.
The government’s brief argues that the 2019 judgment by the U.S. Court of Appeals for the 9th Circuit should be reversed and challenges the 9th Circuit decision in Marks v. Crunch San Diego LLC.
The government’s brief also notes that, after the decision in ACA International v. FCC and pending reconsideration of the ATDS definition in the TCPA by the FCC, “there is consequently no current FCC interpretation to which a court could potentially defer” and that Congress did not “write a blank slate when it enacted the TCPA.”
Facebook also filed a brief in the case Sept. 4, noting the semantics of the TCPA.
Circuit courts remain split on the issue.
In other news, the Supreme Court also set arguments in a case focused on the leadership structure of a federal agency similar to Seila Law v. Consumer Financial Protection Bureau.
The court will hear oral arguments in Collins v. Mnuchin, which challenges the leadership structure of the Federal Housing Finance Agency (FHFA), on Dec. 9.
Plaintiffs in Collins v. Mnuchin asked the Supreme Court to consider the outcome in the case if the FHFA’s structure is ruled to be unconstitutional after the court’s decision in Seila Law v. Consumer Financial Protection Bureau.
In Seila Law, the Supreme Court found that the CFPB’s single director structure is unconstitutional, but the provision allowing the removal of the CFPB director only “for cause” is severable from the rest of the statute. As such, the CFPB will continue to exist but its construct will change, and it will be easier to select CFPB leadership based on political affiliation, ACA previously reported.