TCPA Litigation Update — Supreme Court Hears Oral Argument on TCPA Autodialer Provision

On December 8, 2020, the Supreme Court held much anticipated oral argument in Facebook, Inc. v. Duguid, et al., Case No. 19-511 (2020) to determine whether an automatic telephone dialing system (“ATDS”) includes devices that can store and automatically dial telephone numbers without generating those numbers in sequence or at random. At the center of the case lies the TCPA’s statutory ATDS definition, which is the subject of a circuit split: the Third, Seventh, and Eleventh Circuits require random or sequential number generation, while the Second, Sixth, and Ninth Circuits do not.[1]

The Justices and advocates sparred for over an hour with Facebook arguing that under ordinary rules of grammar and canons of construction, the phrase “using a random or sequential number generator” cannot be decoupled from the verb “store” but instead modifies both “store” and “produce.” Duguid’s counsel, on the other hand, asserted the phrase “using a random or sequential number generator” modifies only “to produce,” but not “to store” based on principles of synesis.[2] Under Duguid’s reading, the ATDS definition covers systems that store or produce numbers to be dialed automatically, which Facebook warned converts a statute designed to target specialized technologies of telemarketers that posed distinct risks into one that potentially penalizes any smartphone user.

None of the Justices seemed eager to adopt either interpretation presented by the Parties: one that Duguid claims would result in an avalanche of telemarketing or another that would open anyone with an ordinary smartphone to liability under the TCPA. Justice Breyer confirmed Facebook’s position that a disjunctive reading would outlaw virtually all calls from modern cell phones. Justice Alito – usually a hardliner on textual statutory interpretation – questioned how a number could be “stored” using “a random or sequential number generator” and stated that the issue posed a “problem” for Facebook’s argument. In response, Facebook pressed the idea that it is not that the number generator has to literally do the storing (or for that matter, the dialing), but instead that “you’re using the number generator … as part of the process of storing telephone numbers to be called or part of the process of dialing telephone numbers to be called.” The point appeared to resonate with the Court, and it was oft repeated by Facebook’s counsel throughout the argument.

The Justices also noted that the ATDS definition is dated and does not account for the realities of modern-day technology. Justice Sotomayor remarked, “You are right to note that today almost all phones have the ability to store and dial telephone numbers. If what Congress wanted to do was stop a call that was automatic, and that’s what it accomplished, wouldn’t it be its job, not ours, to update the TCPA to bring it in line with the times?” Justice Thomas also remarked, “Don’t you think it’s rather odd that we are applying a statute that’s almost anachronistic, if not vestigial . . . to modern technology like Facebook?” Unlike oral argument in Barr v. AAPC, 19-631, where some Justices championed the TCPA, the Court remarkably dissected its statutory language, considered the ramifications of a pro-plaintiff interpretation, and openly questioned whether interpreting the statute is an act in futility given the state of technology.

Whatever the outcome, Facebook will likely send shockwaves through class action practice. Stay tuned through Spring of 2021, when we expect the decision to be released.

Endnotes

1 The TCPA defines an ATDS as “equipment which has the capacity — (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).

2 Synesis is a grammatical construction in which an expected grammatical agreement in form is replaced by an agreement in meaning.

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