Case No. 19-511 | 9th Cir.
December 8, 2020
Preview by Jacob Reiskin, Online Editor
Consumer privacy meets Facebook goliath as the Court decides the definition of an “automatic telephone dialing system” in the Telephone Consumer Protection Act of 1991 (“TCPA”). 47 U.S.C. § 227 (2018). The new super-majority-conservative Supreme Court will have the opportunity to signal its position on statutory interpretation when it considers grammar and congressional intent to determine the breadth of the law against robocalls. The respondent, Duguid, sued Facebook after repeatedly receiving security-related text messages from Facebook that he did not ask for or consent to. The Ninth Circuit found for Duguid.
The TCPA bans “automatic telephone dialing systems” (“ATDSs”) that it defines as systems that have 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.” 47 U.S.C. § 227(a)(1). The core of the debate is whether “using a random or sequential number generator” modifies the words “store” and “produce” (Facebook’s view) or just “produce” (Duguid’s view). Facebook’s interpretation of the law modifying both words would mean that the law is virtually obsolete since sequential dialing systems are hardly used anymore. Duguid’s variation results in a broader ban against robocalling because ATDS systems that merely store numbers (i.e., Facebook’s curated database) would be banned in addition to older obsolete systems that produce and call numbers randomly.
The outgoing Trump administration, an intervenor, argues for Facebook’s interpretation. The Government contends that the Ninth Circuit’s prior opinion in Marks v. Crunch San Diego, LLC—which the Ninth Circuit relied on here—misinterpreted the statute by misreading the Congressional record. 904 F.3d 1041, 1052 (9th Cir. 2018), cert. dismissed, 139 S. Ct. 1289 (2019); see Brief for the United States as Respondent Supporting Petitioner at 10–13, Facebook, Inc. v. Duguid, No. 19-511 (U.S. filed Sept. 4, 2020). The Acting Solicitor General argues that many states had broad bans in 1991, and had Congress wanted a broad prohibition, it would have adopted language used in state statutes. The Government also made various grammatical arguments and explained that Congress could amend the law if it wants to broaden it.
Duguid tells the Court that narrowing the statute now would limit Congress’s intent by circumventing a desire to protect against invasions of privacy by reigning in robocalling through a ban on two types of technology—systems that call stored numbers and systems that call generated numbers. He argues that Congress used different language from state laws because it wanted to create clarity, and Duguid says that if “using a random or sequential number generator” modifies both “store” and “produce,” then the words “store or” become superfluous. See Brief of Respondent Noah Duguid at 8–10, Facebook, Inc. v. Duguid, No. 19-511 (U.S. filed Oct. 16, 2020).
Facebook builds much of its case on the notion that cellphones could be considered ATDS under Duguid’s argument and that individuals could incur $1,500 per unwanted-call liability—something it says may rise to a First Amendment violation. See Brief for Petitioner at 21, Facebook, Inc. v. Duguid, No. 19-511 (U.S. filed Sept. 4, 2020). Duguid says the floodgates are not open, because while a smartphone could be programmed to act as an ATDS, a cell phone with stored contacts is not automatic by definition of the statute. He also argues that the FCC agreed with his interpretation in 2015 when the agency found individual cell phone users not liable under the TCPA. See FCC, In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7998–99 (2015). The Government, in contrast, argues that regulation is irrelevant since the D.C. Circuit vacated it.
In Duguid, a textual debate over a comma provides cover for the Supreme Court to signal its position on the role of the judiciary, statutory interpretation, and consumer privacy.