On December 8, 2020, the US Supreme Court heard an oral argument on Facebook, Inc. versus Duguid, a case designed to establish a statewide standard for the definition of “autodialer” passed by the Telephone Consumer Protection Act (TCPA). The Court of Justice must decide on a division between federal appeals courts in relation to this definition. While predicting the outcome of Supreme Court decisions based on a hearing is a risky endeavor, the likelihood of a decision in favor of Facebook with a narrower “autodialer” interpretation seems greater than a decision supported by Duguid.
The US Court of Appeals for the Ninth Circuit, the Court of Appeal, which issued the most recent opinion in Duguid, took a broader view of the autodialer definition. According to this view, a device can be regulated as an autodialer if it is able to automatically dial telephone numbers from a stored list, even if there is no random or sequential generation of telephone numbers. At least two other federal appeals courts have adopted this interpretation.
Three and arguably four federal appeals courts have narrowed the autodialer definition and restricted it to devices that are capable of storing or producing telephone numbers to be called using a random or sequence number generator.
All of the federal appeals courts that have looked at this issue seem to agree that the TCPA’s autodialer definition is frustratingly imprecise. As a result, these courts, as well as the attorneys representing Facebook, Duguid, and the United States at a hearing, had to channel their support for one or the other interpretation between a rock of grammatical rules and a harsh place of Congressional intent out in 1991. The grammatical puzzle is, whether the definition’s reference to the generation of random or sequential numbers applies to both the ability to store telephone numbers and to the ability to generate them (the narrow interpretation favored by the defendants) or whether it applies only to the latter (the broad interpretation in favor of the plaintiffs). At an oral hearing, both sides claimed they had grammar on their side.
The judges were clearly concerned at the prospect that the expansive autodialer interpretation of the Ninth Circuit could lead to TCPA lawsuits arising from routine human use of smartphones. As part of the expansive approach, devices can be regulated as autodialers if they are able to store numbers and dial automatically. Justice Alito noted that this sounded like call forwarding technology, while Justice Barrett made the more modern observation that iPhones come with the ability to automatically answer calls when someone is driving or doesn’t want to be disturbed.
Interestingly, Duguid was represented at a hearing by Bryan Garner, co-author with Antonin Scalia of Reading Law: The Interpretation of Legal Texts, a popular book on legal interpretation. This could be seen as an attempt to win over the judiciary’s block of the Court of Justice who pretends to be guided by the text of a statute before other considerations. Garner did his best to defend the expansive interpretation as the most reasonable reading of the text, but he did not seem to have won the majority of the court. It was even more difficult for him to convince the court that normal smartphone use under the expansive perspective would not result in TCPA lawsuits.
As mentioned at the beginning of this article, we should all be careful when guessing the outcome of Supreme Court decisions based on an oral hearing. Even so, the prediction of this article is a majority in favor of Facebook, so it is time to retire the TCPA and replace it with modernized standards that govern the way we communicate by phone today.