The U.S. Supreme Court heard the case on the TCPA and the definition of an autodialer on Tuesday and is expected to issue a ruling by the end of June 2021. Members can learn more about the oral argument on the Dec. 9 ACA Huddle.
On Tuesday, oral arguments before the U.S. Supreme Court in Facebook v. Duguid came down to the semantics of the statutory definition of an automatic telephone dialing system (ATDS) in the Telephone Consumer Protection Act and a debate about the role that Congress or the courts should play in modernizing the statute.
With Chief Justice John Roberts presiding, the court heard arguments from Paul Clement, partner at Kirkland & Ellis in Washington, D.C., on behalf of Facebook; Bryan Garner of Garner & Garner LLP on behalf of Noah Duguid; and Jonathan Ellis, assistant to the Solicitor General, on behalf of the U.S. government, which has aligned itself with Facebook in the appeal.
As modified after Barr v. AAPC, the Duguid case presents a simple question: Whether the definition of an “automatic telephone dialing system” in the TCPA includes any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”
Recall that the D.C. Circuit’s decision in ACA International v. FCC blew open the debate over this provision of law back in 2016, with a subsequent circuit split developing as to the definition of an ATDS and whether the statutory language should be interpreted narrowly or broadly.
Among other key exchanges that occurred during oral argument on Tuesday:
Chief Justice Roberts opened the dialogue with a simple question about the complexity of the parties’ syntactic and grammatical arguments. He wondered why—if the drafters of the TCPA clearly weren’t following strict grammatical and statutory rules of construction—the court focus on those pedantic arguments rather than on the sense and meaning of the statutory provision as whole? To that point, Clement responded: “because the other way lies madness,” meaning that the “sense of the statute” approach would allow for so much “play in the joints” of statutory interpretation that you would “essentially empower the judiciary to rewrite statutes.”
Justice Sonia Sotomayor asked Clement if the issue is less about the statutory language and more about the TCPA being outdated, and, if so, whether Congress (as opposed to the court) should be responsible for updating the statute.
Clement replied that, yes, at least to some extent the problem has to do with trying to apply a statute written for 1991 technology to the technology in use some 30 years later, which has a tendency to encourage an overbroad application of the outdated statutory definition, and that, yes, “it’s Congress’s job to update the statute.”
In a similar vein, Justice Clarence Thomas asked Ellis whether—in light of the changes in technology—we should at some point “simply say . . . that what we’re attempting to do with this statute . . . is an ill fit for current technology?”
For his part, Justice Neil Gorsuch held Garner’s feet to the fire about the statutory interpretation and the need for human intervention. In Gorsuch’s own words: “to store a number, if it’s totally divorced from the random or sequential number generator, and then to dial such number would seem to be enough.” In that way, Gorsuch appeared to agree with Justices Elena Kagan and Sotomayor that Duguid’s proposed interpretation of the term ATDS goes too far and would turn every cell phone into an ATDS.
Justice Barrett—who authored the 7th Circuit’s opinion in Gadelhak— questioned Garner about the consequences of setting on iPhone to its “do not disturb” function when driving, so that it sends an automatic text-message reply to selected contacts or to any caller, and whether that would provide sufficient human intervention—“one step removed,” in Barrett’s words— to avoid falling within the broader definition of an ATDS. At the same time, Barrett asked whether the concept of synesis, i.e., looking at the overall sense of a grammatical construction rather than applying a strict grammatical parsing, has ever been used by a court and, if not, whether it would be a useful rule of statutory construction. To that question, Garner answered that he would not “broadly” endorse the concept, although “it does recognize that we must look at the sense of the words to understand the sentence.”
The Federal Communications Commission’s prior interpretation of an ATDS did not get significant airtime during the back-and-forth, but it did come up a handful of times.
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 and in favor of the appeal in Marks. Read more here.
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 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 Int’l v. FCC.
For more on the oral argument, members can join the ACA Huddle Dec. 9 at 11 a.m. CST. David Kaminski, partner at Carlson & Messer LLP, and Skip Kohlmyer, partner at Shepard, Smith, Kohlmyer & Hand, will share what they learned from the hearing.