On December 7, 2020 the Supreme Court heard oral argument in Facebook v. Duguid to address the circuit split over the interpretation of the statutory definition of automatic telephone dialing system (ATDS) under the TCPA. The question considered by the Court was whether the statutory definition of ATDS should be read to encompass only equipment that can randomly or sequentially generate telephone numbers, or equipment that can store and dial telephone numbers. The outcome of the Court’s opinion will determine whether the TCPA’s autodialer restriction will apply narrowly to mostly obsolete technology that would dial phone numbers at random, or more broadly to any device that can dial phone numbers from a stored list of contacts, including modern-day automated dialing systems, and potentially even smartphones.
Under the TCPA, an ATDS is defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” 47 U.S.C. § 227(a). Both sides presented imperfect interpretations of this definition, that led to hard questions by the justices. The justices trod common ground over the biggest problems with each interpretation, while also probing some new angles. The following are five highlights from oral arguments:
- As to Facebook’s interpretation, the justices honed in on the awkwardness of reading the ATDS definition to apply to devices that could “store” telephone numbers “using a random or sequential number generator.” None of the justices that raised this issue seemed particularly satisfied by Facebook’s explanation of how this was a sensible reading of the definition.
- Certain rules of grammar and interpretation on which Facebook’s narrow interpretation were based did not seem to carry as much weight as would have been expected. Justice Alito even characterized some of those rules as “archaic.” Thus, while many of the justices agreed that these rules favored Facebook’s interpretation, they still seemed receptive to Petitioner’s argument that the Court should be prioritizing the sense of the definition over its strict syntax.
- Obsolescence of the TCPA was common theme. Many justices commented that the problem in the case seemed to arise from the fact that the TCPA was simply outdated due to evolution of communication technologies. Justice Alito stated that if the Court had the power to declare statutes obsolete, the TCPA would be a good candidate. Justice Thomas found it odd to apply a statute that is almost “anachronistic if not vestigial to modern technology.” Interestingly, this commentary by the justices implies that the ATDS definition is more properly read to apply only to random dialers, which are in fact obsolete devices, thereby making the statute itself obsolete.
- The justices almost universally expressed concern over application of the TCPA to smartphones as a consequence of broadly interpreting the ATDS definition to encompass devices that dial from stored lists. Indeed, Justice Sotomayor commented that such an interpretation could hinder the development of technology to “help people do things more quickly.” Out of all the interpretive implications that the justices addressed in the course of arguments, they seemed most troubled by this one.
- Many justices seemed skeptical that, if an ATDS covers devices that dial numbers from stored lists, human intervention could save smartphones from the grasp of the TCPA. Questions abounded over when and how much intervention would be needed before a device was no longer an ATDS.
Given the scrutiny to which the Court subjected each side’s interpretation, it is difficult to say how the Court will interpret the statutory definition of ATDS. However, if there is one thing that is certain, it is that the Court’s opinion will have a significant (though perhaps temporary) impact on TCPA litigation. If the Court accepts the Respondent’s broad interpretation, things will largely return to the status quo before the D.C. Circuit’s opinion in ACA International v. FCC set off a torrent of court battles over the ATDS definition. On the other hand, if the Court accepts Facebook’s interpretation, it would significantly narrow the reach of the TCPA’s autodialer provisions because of the significant technological changes that have occurred since the TCPA was adopted in 1991.
With regard to the potential for the Supreme Court to adopt a narrow definition of ATDS that would limit the reach of the TCPA, it is important to note that such a decision would likely not be the end of the matter. It is safe to say that, given the popularity of the law, such an outcome would likely prompt either the FCC or Congress to take additional action. Congress could pass a new law that rewrites the ATDS definition to encompass modern automated dialing systems. Alternatively, a newly-constituted FCC under the leadership of a Biden-appointed Chairman could also use the existing rulemaking to issue an interpretation of the existing definition that likely supersede the Supreme Court’s decision in Facebook v. Duguid. In short, given the near-universal disdain for so-called robocalls, it is unlikely that the Supreme Court’s decision in Facebook v. Duguid will be the end of the road for federal robocall regulation.