Posted by Amanda Shanor
on April 1, 2021
at 9.45 p.m.
On Thursday, the Supreme Court unanimously joined Facebook in a lawsuit over unsolicited text messages the social media giant sent to a cell phone number in the company’s database. In a statement written by Justice Sonia Sotomayor on Facebook against Duguid, the court adopted a narrow reading of a key definition in the federal ban on robocalls and robotic texts for mobile phones. In order to qualify as an “automatic telephone dialing system” within the meaning of the Telephone Consumer Protection Act, a device must be able to store or produce a telephone number using a random or sequence number generator – a kind of outdated marketing technology.
The decision is likely to have a significant impact on the future of telemarketing. Most importantly, the law does not prohibit the use of today’s dominant predictive dialing technology to call or SMS targeted customers, including the technology that relies on the vast amounts of data now being used by American people Consumers are collected as long as this is artificial or recorded voice is not used. In this context, the judges made it clear that it is the task of Congress, and not the court, to update the statutes in the face of technological change.
Adopted in 1991, the TCPA responded to widespread consumer outrage over improper telemarketing calls. The portion of the law at issue in Duguid prohibits “the use of an automatic telephone dialing system or artificial or recorded voice” to call or write on cell phones, as well as emergency lines, hospital rooms, pagers and phones that charge for incoming calls, among others . The Federal Communications Commission, 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.
Since the adoption of the TCPA, the definition of the automatic telephone dialing system has remained the same despite dramatic changes in telemarketing technology: “Devices that have the capacity – (A) to store or produce telephone numbers to be called, using a random or continuous number generator; and (B) to choose such numbers. “
Noah Duguid sued Facebook under the law for receiving several text messages from the company alerting him that someone had tried to access his Facebook account using an unknown browser – even though Duguid never had a Facebook account or the Company gave his number. These messages were sent to him using some form of automated technology that did not, however, use a random or sequence number generator.
Sotomayor’s submission to the court followed a strikingly textualistic approach that focused on whether the law prohibits devices that do not use a random or sequential number generator. The court’s answer: “It doesn’t.”
Facebook had argued that the device must use a random or sequence number generator to qualify as a banned autodialer – something its technology doesn’t. For syntactic reasons, modify the clause “Use a random or sequence number generator” both verbs, “save” and “produce”. Duguid had argued that a number generator was not necessary since “using a … number generator” only applies to “producing”. Its main argument: It doesn’t make sense to talk about storing numbers with a number generator. As Duguid would read, the law would generally prohibit the use of devices with the ability to “store … numbers to be called” and dial them.
The court concluded that the most natural reading of the text confirmed Facebook’s view.
First, Sotomayor argued that “[u]under conventional grammar rules'[w]If there is a simple, parallel construction that includes all nouns or verbs in a series, there is usually a modifier at the end of the list that applies to the entire series. This passage cites the Law of Reading: The Interpretation of Legal Texts by Former Judges Antonin Scalia and Professor Brian Garner – who argued the case on behalf of Duguid. According to this interpretation rule (referred to as serial qualification canon) the number generator should apply to both “storing” and “producing”, so that a number generator is a necessary component for devices that qualify as autodialers.
Second, the court concluded that the legal context confirmed this reading. Why? The TCPA made it illegal to use an autodialer to call certain types of numbers – emergency lines for which the called party will be charged for the call, etc. – and to connect two or more lines of a multi-line business. “Extending the definition of an autodialer to all devices that only store and dial phone numbers would mean a chainsaw for these nuanced problems if Congress wanted to use a scalpel,” wrote Sotomayor. In particular, the court feared that Duguid’s interpretation “would cover virtually all modern cell phones” that can store and dial numbers – which means that “normal cell phone owners” “in the course of everyday use such as speed dialing” could or may be exposed to high TCPA liability Send automated SMS replies. “
The court rejected Duguid’s counter-arguments, including his claim that there was no point in talking about devices that store numbers using a random or sequence number generator because they do not overcome the “clear commands” of legal text and context would have. It also downplayed Duguid’s warnings that accepting Facebook’s interpretation would “unleash a” stream of robocalls “as the act continues to prohibit calls made with an automatic or recorded voice.
Despite the strong textual bias of the opinion, the institutionalist ending is perhaps the most important: “Duguid’s argument is with Congress…. ‘Senescent’ as a number generator (and perhaps the TCPA itself) may be, that is no justification for avoiding the best reading of [the act]. ”
Judge Samuel Alito agreed with the ruling, but wrote separately to question the court’s approach to textualism – particularly its “heavy reliance” on serial qualification canon. “The Tribunal calls this canon the ‘rule'[e] the grammar, ” he pointed out. And yet he quoted Scalia & Garner in the majority and stated that interpretation cannons are “not” rules “of interpretation in the narrower sense, but assumptions about what an intelligently produced text conveys.”
To the extent that interpretive cannons accurately describe how the English language is used in general, they are useful tools. … [But w]In describing canons as rules or citing canons without considering their reservations and limitations, we are only encouraging the lower courts to refer the legal interpretation to a series of if-then calculations. No sensible reader interprets texts that way.
We may all be textualists now, but Alito’s approval is the latest sign of internal court disagreement about what exactly it means to be a textualist. A similar rift emerged between Alito and Justice Neil Gorsuch in last year’s Bostock decision against Clayton County. Whether or not more is to be done to curb the use of targeted, predictive voting by telemarketers – or whatever technology brings future advances – the ball is now clearly in the court of Congress.