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By: Matthew Foree
The Supreme Court of the United States recently heard an important Telephone Consumer Protection Act (“TCPA”) case concerning the statutory definition of “automatic telephone dialing system” (“ATDS”). Whether a person used an ATDS can be a basis for liability and severe penalties. We previously reported on this matter here. The oral argument audio is available here and a transcript of the hearing is available here.
The argument centered around the definition of ATDS, which has created confusion among the courts, resulting in a patchwork of inconsistent decisions throughout the country. ATDS is defined in the statute 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.” The Supreme Court is considering whether the definition of ATDS in the TCPA encompasses any device that can store and automatically dial telephone numbers, even if the device does not use a random or sequential number generator.
The argument necessarily involved statutory interpretation and the rules of grammatical construction. Facebook argued, among other things, that the statute should be read according to its text, including that the phrase “telephone numbers to be called, using a random or sequential number generator” applies to both verbs, “store” or “produce.” This argument raises the difficult concept that something can be “stored” using a “random or sequential number generator.” Facebook argued that a contrary reading covers any device that can store and dial numbers without the use of a “random or sequential number generator.” This raised the idea that a smartphone could be considered an autodialer.
Interestingly, given the grammatical nature of the dispute, Bryan Garner, of legal writing fame, argued for Duguid. He began by underscoring the Congressional purpose of privacy in enacting the TCPA. He also argued that rules of grammar permit a reading of the statute where the phrase “telephone numbers to be called, using a random or sequential number generator” can apply to only the verb “produce,” which precedes the phrase, and not the verb “store.” He argued that Facebook’s interpretation reads the statute “into oblivion,” with the impact being the unwanted proliferation of robocalls.
So, to over-simplify, on one side we have an argument that could promote the proliferation of robocalls and on the other one that could drastically reduce them. The hearing underscored the continuing confusion surrounding the ATDS definition. In 1991, when the statute was enacted, cellular telephones were in their infancy (and the size of bricks) and text messages did not exist as they do today. The parties and the Justices struggled with fitting today’s technology into the statutory language and some seemed to consider other ways to get around the problem. Perhaps the most interesting example was Justice Thomas asking why a text message is considered a call under the TCPA at all.
This confusion has driven the split among the U.S. Circuit Courts of Appeal, which have interpreted the statutory language inconsistently. Some courts, like the Eleventh Circuit, interpret the language literally with a restricted approach, while others have expanded the definition. Most notably, the U.S. Court of Appeals for the Ninth Circuit in Marks v. Crunch San Diego, LLC concluded that the “statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,’ but also includes devices with the capacity to dial stored numbers automatically.”
Practitioners and their clients are eagerly awaiting the Court’s decision on this matter so that it can be put to rest, hopefully. A ruling is expected by summer of 2021.
For more information, please contact Matt Foree at [email protected].