Reply briefs in Facebook Inc. v. Duguid filed Nov. 16 by Facebook and by the U.S. government argue for narrow interpretation of ATDS under the TCPA. Editor’s note: This article is available for members only.
11/22/2020 9:30
– Facebook and the U.S. are aligned in their positions on the issue.
– Oral arguments in the case have been set for Dec. 8.
– ACA International filed an amici brief with industry trade groups advocating for the Supreme Court to reject the 9th Circuit’s expansive approach in Marks v. Crunch San Diego LLC.
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On Monday, Nov. 16, the U.S. Supreme Court received reply briefs from Facebook Inc. and its aligned party, the U.S. government, in Facebook Inc. v. Duguid. The case is expected to decide whether the definition of an "automatic telephone dialing system" (ATDS) in the Telephone Consumer Protection Act of 1991 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.”
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 contrast, Facebook has maintained—and now reiterates in the reply brief—that the court must adopt a narrow, straightforward (facial) 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 new 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 addition, Facebook argues that Duguid’s approach to the interpretation of the statutory definition of an ATDS “ignores the targeted nature of the TCPA’s ATDS prohibitions.”
Facebook’s argument comes down to this: the definition of an ATDS ought to be interpreted through a natural grammatical lens—not the sophistic “synesis” interpretation that Duguid offers up—and this natural reading ought to be focused by the congressional intent of “address[ing] distinct problems posed by random- and sequential-number generators . . . .”
The U.S. government—aligned in argument with Facebook here—has similarly argued for a narrow interpretation of the statutory definition of an ATDS. In the government’s reply brief, also filed Nov. 16, the U.S. summarized its position this way: Duguid’s “substantially broader construction” of the term ATDS “disregards usual rules of syntax and grammar, dismisses reasonable understandings of Congress’s objectives, and misconceives the provision’s limited role in the larger statutory scheme.” Further, the government argues, were the court to adopt Duguid’s expansive view of what constitutes an ATDS, it would “cast doubt on the legality of ubiquitous private uses of ordinary smartphones.
The parties will present oral arguments in the case on Dec. 8, and Facebook has allocated half of its oral argument time to the U.S.
Notably, the Dec. 8 hearing will include newly confirmed associate justice Amy Coney Barrett, who just a few months ago authored an opinion for the 7th Circuit adopting a narrow reading of the TCPA’s definition of an ATDS in the case of Gadelhak v. AT&T Services Inc.
For its part, ACA International participated with industry trade groups in the filing of an amici brief in the Facebook case. The amici brief advocates for a rejection of the 9th Circuit’s expansive extra-statutory approach applied in Marks v. Crunch San Diego LLC, which is essentially the approach that’s on appeal in the Facebook case. As our readers may recall, Marks represented one the first post-ACA International v. FCC circuit decisions to conclude that the definition of an ATDS includes dialing equipment that merely has the capacity to store numbers and dial them automatically, which broadly expanded the statutory definition to include numbers automatically dialed from a list or database.
The bottom line: On Dec. 8, the Supreme Court will hear oral argument in a case that could yield the biggest step toward TCPA reform, at least on the judicial side, and would create positive precedent for courts across the country.
Read more on how we got here in coverage from ACA: Breaking Down What’s Next for the TCPA and ACA International Joins Amici Brief in Landmark SCOTUS Autodialer Case.