On Tuesday, the Supreme Court will hear a hearing on Facebook v. Duguid for the second time this year on federal law banning robocalls and robotext messages to cell phones. This time around the court the question arises whether calls and texts sent with certain automated messaging systems fall under the robocall ban – including the predictive technology used to call customers or send SMS, for example due to the large amount of data that is now over American consumers are collected.
Why is that important? Because telemarketing has changed dramatically since the Telephone Consumer Protection Act came into force in 1991. While targeted automated calls and texts – and cell phones too – began to materialize in the early 1990s, they are ubiquitous today. Does the Robocall Act prohibit them without the consent of the consumer, or does it just prohibit robocalls and robotic texts of older technologies that dial random or sequence numbers? The answer to this legal question is likely to have a huge impact on the future of marketing and cell phone spam.
The TCPA, passed in 1991, responded to widespread consumer outrage of the proliferation of intrusive, annoying calls from telemarketers into their homes. “Congress pointed to evidence that consumers view automated calls as” a nuisance and an invasion of privacy “. The Senate’s main sponsor of TCPA went so far as to call automated and recorded calls “the scourge of modern civilization”[ing] until we want to rip the phone straight out of the wall. “
The portion of the law at issue in Duguid prohibits “the use of an automatic telephone dialing system or artificial or recorded voice” – both of which the Federal Communications Commission regards as “robocalls” – to call or send cell phones and emergency lines. Hospital patient rooms, pagers, and phones that charge for incoming calls, among other things. The FCC, attorneys general, and private parties have the power to sue those who fail to comply with the law. The fine is up to $ 1,500 per call.
Noah Duguid sued Facebook, alleging the company violated the TCPA by using an automatic telephone dialing system to send text messages to his cell phone without his consent. Duguid is not a Facebook user and has not given Facebook his number. Facebook incorrectly sent multiple text messages from Duguid to automatically send a computer-generated text message to a user’s cell phone when their account is accessed from an unknown device. Duguid contacted Facebook to turn off the news, but received it for several months.
Since the adoption of the TCPA, the definition of the automatic telephone dialing system (ATDS) has remained unchanged: “Devices with the capacity – (A) to store or produce telephone numbers to be called using a random or sequence number generator ;; and (B) to choose such numbers. “
Duguid argued that Facebook’s text messages were sent by an ATDS without his consent and are therefore illegal. The law includes devices that can “store” and “dial” numbers to be called without the need for human intervention, regardless of whether the device uses a random or sequential number generator, he argued. Facebook, he said, used such a system to send him text messages.
Facebook replied that “[f]Duguid only complained that Facebook had sent him personally targeted messages, claiming a mass distribution on randomly or sequentially generated numbers “as the definition of an ATDS dictates. The TCPA, the social network argued, only covers devices that use a random or sequence number generator – which Duguid recognizes that Facebook’s SMS system doesn’t.
Facebook also argued that the TCPA violated the first amendment due to exceptions in the law. The mobile phone robocall ban originally included two exceptions: emergency calls and those made with the recipient’s prior consent. In 2015, Congress amended the TCPA to add a third exception for calls to collect a debt owed or guaranteed to the federal government. (That exception was controversial in the court’s first clash with the TCPA earlier this year in Barr v American Association of Political Consultants.) Facebook claimed that the sovereign debt and emergency exceptions made the law “content-based” – a catchphrase of the first amendment, which refers to restrictions on freedom of expression that apply differently depending on the subject of the phrase. In particular, Facebook argued that callers could make automated calls on certain topics (government-backed loans, emergencies) but not on others (e.g. Facebook’s login notifications). Since the law is content-based, the strictest form of review of the first amendment – strict control – should apply, and under that standard, the ban on cell phone robocalls should be completely lifted.
A federal district court accepted Facebook’s legal defense and declined to get the first amendment argument. The court dismissed Duguid’s complaint on the grounds that he had made an implausible claim that the “text messages received were sent with an ATDS”. The court concluded that “Facebook’s registration SMS notifications are targeted to specific phone numbers and are triggered by attempts to log into Facebook accounts associated with those phone numbers,” rather than “in bulk at random or sequentially generated numbers ”. “As prohibited by law.
The U.S. Court of Appeals for the 9th Circuit reversed. After its own decision in Marks v. Crunch San Diego, LLC in 2018, the 9th Circuit concluded that in the legal definition of an ATDS, the adverbial phrase “using a random or sequence number generator” only in “produce” and not in ” The court was therefore of the opinion that a device qualifies as an ATDS if it has the ability to “store numbers to be called” and “automatically dial such numbers.” When the court reached the constitutional question , it found that the TCPA national debt exception was substantive and violated the first amendment, but the law was not crushed. Instead, it separated the exception from the rest of the law and left the general cell phone robocall ban in effect – and Facebook not good at it.
Facebook filed a certification petition asking the Supreme Court to review both its legal and constitutional challenges. The court detained Duguid while considering advisors, which it decided in July. In Consultants, a group of political advisors who wanted to participate in political robocalls challenged the cell phone robocall ban on the First Amendment. The advisors, like Facebook, argued that the TCPA national debt exception made the law content-based and unconstitutional. Like the 9th Circle in Duguid, the Supreme Court found that the TCPA national debt exception violated the first amendment, but refused to crush the entire law. Instead, the court separated the government debt exception from the rest of the law and left the general robocall ban on cell phones in place. it thus gave the advisors a constitutional victory, but no relief.
Three days after the decision in Consultants, the Supreme Court upheld Facebook’s petition, which was limited to the company’s remaining legal argument: whether the TCPA definition of “automatic telephone dialing” includes a device that stores phone numbers without random or sequential use and can automatically dial number generator.
As below, Facebook argues that the answer to this question is no. It is asserted that the usual grammar rules and various cannons of legal interpretation require that the legal expression “using a random or sequence number generator” apply to both verbs “store” and “produce”. That definition of an ATDS makes sense for the purpose of Congress, Facebook claims: While Congress has largely banned unwanted calls with a recorded or artificial voice, it has restricted the use of an ATDS in a more restricted way, which was particularly relevant because of its use, random or continuous number generators with which all lines in a hospital, a police station, a company or a cellular network could be connected at the same time. What an ATDS does automatically, Facebook argues, is the use of a random or sequence number generator. The practical ramifications of adopting Duguid’s interpretation of the statute, according to Facebook, would also result in any smartphone becoming an ATDS subject to liability, raising concerns about the over-width of the first amendment.
The federal government, which filed a brief in support of Facebook, also argues that a device is only an ATDS if it has the ability to use a random or sequence number generator to store or produce phone numbers. When a modifying phrase appears at the end of a list – like the adverbial phrase here – the phrase usually modifies every element in the list, advising the government, not just the last element. The fact that “the use of a random or sequence number generator” is triggered by a comma reinforces the conclusion that this applies to both “store” and “produce”. The federal government does not press the argument of Facebook’s first change.
Duguid counters that Facebook’s interpretation reads the first legal verb “save” from the definition of an ADTS as a whole. Since random and sequence number generators do not store numbers, but produce them, every device that uses such a generator is recorded by the verb “produce”, which makes “store” or “superfluous”. According to Duguid, the legal interpretation requires a sense of the words, namely “the reasonable connection between product and use of a number generator”. Just like the phrase “He came out and wept bitterly, which does not mean he went on bitterly,” claims Duguid, the law does not suggest that the number generator phrase modifies “business”. Facebook’s reading of the statute would also, according to Duguid, “unleash the stream of robocalls that Congress has written to stop the TCPA,” as the ban on robocalls “does not apply to the majority of auto-dialed calls and texts on cell phones” would.
The case carries significant legal firepower: former Attorney General Paul Clement represents Facebook, and Bryan Garner, a noted textualist who published a book on interpretation with the late Judge Antonin Scalia, represents Duguid.
Due to the COVID-19 pandemic, the court will make live audio of Tuesday’s hearing available to the public. The court is expected to give its opinion at the end of June.
Amanda Shanor, Case Preview: Judges Reinstate Anti-Robocall Law,
SCOTUSblog (December 7, 2020, 4:57 p.m.), https://www.scotusblog.com/2020/12/case-preview-justices-again-take-on-anti-robocall-law/