The case, which should clarify the definition of an ATDS under the TCPA, has been scheduled for oral argument before the Supreme Court on Dec. 8. Editor’s note: This article is available for members only.
10/23/2020 14:30
Noah Duguid, the lead plaintiff in Facebook Inc. v. Duguid and the respondent in the now-pending Supreme Court review of the 9th Circuit’s decision, filed his principal brief with the Supreme Court on Oct. 16. The brief urges the court to adopt an expansive reading of the statutory definition of the term “automatic telephone dialing system” (ATDS) set forth in the Telephone Consumer Protection Act at 47 Section U.S.C. 227(a)(1), which states that “ATDS” means: “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.”
Since the D.C. Circuit Court’s decision in ACA International v. FCC, circuit courts have split on the interpretation of this definition, particularly whether the phrase “using a random or sequential number generator” modifies only the verb “produce” or both “store or produce.”
Duguid’s brief asks the court to interpret that definition to mean “systems that store or produce numbers to be dialed automatically.” This broad interpretation would cover any technology that has the capacity to dial from a database of numbers, even if the database comprises numbers provided by customers who have granted consent to receive calls, i.e., a “store” of numbers to be dialed automatically.
“The statute accordingly provides that a system meets the definition of an ATDS in either of two ways: if it can store or produce numbers to be called,” Duguid states in the brief, emphasizing that the words “store or” are critical to defining an ATDS. Duguid argues that Facebook’s reading of the definition of an ATDS in the statute would make the words “store or” superfluous. “[E]ven if it were meaningful to speak of storing numbers using a number generator, any system that had that capacity would already qualify as an ATDS because of its capacity to produce numbers using a number generator. ‘Store or’ would be wholly superfluous,” the brief states.
The brief, drafted with the participation of renowned legal writer Bryan Garner, includes a dizzyingly complex grammatical parsing of the statutory definition, as this included sentence diagram suggests:
In addition, Duguid’s brief argues that applying his proposed interpretation of an ATDS, which the 2nd and 9th Circuits have adopted, would be “consistent with the TCPA’s structure, manifest purposes, and context,” and that applying the reading that Facebook has proposed, which the 3rd, 7th, and 11th have adopted, would “unleash the torrent of robocalls Congress wrote the TCPA to stop.” Yet the brief itself admits that “[e]ven when the statute was enacted, random or sequential number dialing was already being rapidly supplanted by predictive dialers . . . .” This implicit concession entails what should be obvious: if Congress had wanted to include predictive dialers in the TCPA, it would have, because it knew about them. But if Congress had intended to include predictive dialers, then the words “random or sequential” would be superfluous in the context of the statute – it would have been sufficient for Congress to say that an ATDS is a system that has the capacity to “store or produce telephone numbers to be called. . . and to dial such numbers.”
The brief does, however, concede that “[t]he mere potential that a device may be transformed into one with that capacity [to make automatic calls] does not, as the D.C. Circuit held in ACA International, suffice [to make that device an ATDS].”
Background
Duguid, in a class action complaint, claimed that Facebook sent him—and a class of similarly situated individuals—“sporadic login-notification text messages . . . using an ATDS” to notify them that an unrecognized device or web browser had accessed their Facebook accounts. He alleged receiving such notifications, despite not having a Facebook account or consenting to receive alerts from the company, violated the TCPA, ACA International previously reported in Collector magazine. The consumer claimed he repeatedly attempted to cancel the alerts, but the notifications continued. Facebook challenged the adequacy of the consumer’s allegations and took issue with the TCPA’s constitutionality, claiming it violates the First Amendment.
A California district court dismissed the case, saying that the consumer inadequately alleged that Facebook sent its messages using an autodialer—a prerequisite for TCPA liability. On appeal, in October 2019, a 9th Circuit panel reversed the district court’s decision, ruling that Duguid’s allegations were sufficient. However, addressing the TCPA’s constitutionality, the appeals court said the 2015 TCPA amendment allowing an exception for debt collection calls for debt owed to or guaranteed by the U.S. government is unconstitutional.
In July, the Supreme Court granted a Writ of Certiorari in the case, ACA previously reported. The case 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.”
Much of the argument in the case focuses on the decision from the U.S. Court of Appeals for the 9th Circuit case, 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.
In a brief filed in September, ACA and industry trade groups argued in favor of Facebook’s appeal that the Marks decision overlooks the TCPA’s history and context and violates the First Amendment by extending the capacity component of an ATDS to smartphones.
Duguid’s argument also highlights that Congress intended both “store” and “produce” to have meaning in the statute and in response to consumer complaints about robocalls; allowing callers to use a system that dials stored numbers would counter Congress’s goals.
Facebook’s appeal in the case, set to be heard by the U.S. Supreme Court in oral arguments Dec. 8, could have a significant impact on defining what is considered an ATDS under the TCPA.
Petitioners in Facebook Inc. v. Duguid also turned in briefs in the case in September, 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 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.
Amicus briefs in support of Duguid were due Oct. 23.
Related content from ACA International:
ACA International Joins Amici Brief in Landmark SCOTUS Autodialer Case