We have reported extensively on the Telephone Consumer Protection Act (TCPA) and in particular cannabis TCPA litigation on this blog.
Last week, the Supreme Court heard oral arguments against Duguid on Facebook, Inc. – perhaps the most impactful case in the TCPA arena today. It was the first time I wrote this post on Facebook stating that the Supreme Court must decide whether the definition of an ATDS includes “any device that can store and automatically dial phone numbers, even if the device doesn’t send us”[e] a random or continuous number generator. “The meaning of Facebook is as follows: In situations where the plaintiff only claims the defendant made a phone call or sent texts from lists of customer data, rather than randomly generated numbers, a decision for Facebook could be made to fully exploit the value of those claims.
Facebook’s attorney argued that Duguid’s interpretation was broad enough to cover any phone call or message, and created “a law of impossible breadth”. He argued that the ban only applies to dialing systems (now largely outdated and rarely used) that generate random or sequential phone numbers. Other notable companies like CVS, Home Depot, Quicken Loans, and United HealthCare have all filed pleadings in support of Facebook’s position.
Duguid’s attorney argued that Congress established the TCPA to respond to a flurry of consumer complaints and intended to cover the use of stored numbers for automatic calls. He argued that Facebook’s suggested interpretation “would read this [TCPA] fell into oblivion. “
Overall, every judiciary made at least one comment indicating that they were frustrated and / or struggling to understand the ambiguous law passed long before Facebook existed, or that cell phones were widespread. Ultimately, several judges appeared to be claiming they agreed with Facebook and were of the opinion that the TCPA did not apply to calls or texts sent from lists of customer data. Especially:
- Judge Stephen Breyer told Facebook’s attorney that he had “a pretty strong argument for the consequences and purposes” of the law.
- Judge Clarence Thomas asked why “text messaging” was covered by the TCPA at all, since the language of the law only governs calls, and later described the law as “ill-suited” for current technology. He also asked, “Don’t you think it’s strange that we are applying a law that is almost anachronistic, if not evidence of modern technology like Facebook and instant messaging, etc.?”
- Judge Sonia Sotomayor commented that interpreting Duguid would jeopardize the risk of lawsuit against cell phone users: “If we rule your path, the corollary is that every cell phone owner would face the harsh criminal and civil sanctions of the TCPA.” Could you give me a reason, other than it hasn’t happened yet, why Congress would have intended it? ” She was unimpressed by Duguid’s attorney’s response.
- Judge Elena Kagan continued to discuss the grammar of the statute with Duguid’s attorney (who literally wrote the legal interpretation book with the late Judge Antonin Scalia) but made it clear that she disagreed with his interpretation. She asked him to acknowledge that the reading he advocated “is indeed ungrammatical”.
- Judge Amy Coney Barrett asked specifically about call forwarding and other automated features that modern cell phones are equipped with. Despite a somewhat unproductive dialogue, we already have a good idea of what she’s thinking, which I wrote about in this post.
Much of the hearing has focused on very technical, very dry arguments about the grammar of the statute, but the Supreme Court has tried to consider the practical implications of their decision. Chief Justice Roberts noted in particular that the “sense” of the destination was more important than its syntax. The court is expected to take its decision in spring 2021 – and like many other consumers and businesses, we will look forward to reading and reporting on it.