On December 8, 2020, the United States Supreme Court held oral argument in the case of Facebook, Inc. v. Duguid, No. 19-511, concerning the circuit split over what type of equipment qualifies as an “automatic telephone dialing system” (ATDS) within the statutory definition of that term set forth in Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. Some Circuit Courts (D.C., Third, Seventh and Eleventh) follow the statutory definition and hold that equipment qualifies as an ATDS only if it uses a random or sequential number generator to generate and dial telephone numbers. Other Circuit Courts (Second, Sixth and Ninth) depart from the statutory definition and hold that equipment qualifies as an ATDS if it automatically dials numbers from a stored list. In a development that could lift Facebook’s chances of prevailing, the Government joined the Company in asking the Court to follow the statutory definition and hold that use of a random or sequential number generator is necessary for equipment to qualify as an ATDS.
During an oral argument that could easily be repurposed into a high school English grammar lesson, the bulk of the Court’s questions concerned the proper interpretation of the statutory definition of an ATDS, which is “equipment which has 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.” The grammatical debate before the Court involved subsection (A) and, specifically, whether equipment that automatically dials number from a stored list without the use of a random or sequential number generator qualifies as an ATDS under the statute. Facebook and the Government argued that the natural and correct grammatical reading is that the modifying phrase “using a random or sequential number generator” modifies both of the preceding verbs, “store” and “produce.”
Facebook’s attorney, Paul Clement, adeptly answered some tough questions from the Justices. Justice Kagan, for example, presented a hypothetical statute making it “illegal to stab or shoot another person with a firearm,” and asked whether she would violate the law if she stabbed someone with a knife. Mr. Clement convincingly responded that while it is possible to formulate hypotheticals such as this “where the mind just sort of rebels at the combination of the two words,” the actual statutory definition at issue did not present “any comparable logical inconsistency or linguistic impossibility,” as it is perfectly sensible for an ATDS to mean equipment with the capacity to “store telephone numbers to be called using a random or sequential number generator.”
Duguid’s attorney, Bryan Garner, faced a largely skeptical bench. The Chief Justice stated that if you just go by what ordinary people would understand the statute to prohibit on “first blush,” then Facebook would seem to have the better reading. Justices Roberts and Alito wondered whether the TCPA’s 1991 text was “anachronistic, if not vestigial” when applied to modern technology like instant messaging and therefore “obsolete.” Justices Sotomayor and Gorsuch were concerned that adopting Duguid’s interpretation “that every cell phone owner would be subject to” TCPA liability and thereby “make … a criminal of us all.” And Justice Barrett made reference to a Seventh Circuit opinion she authored in 2019 endorsing Facebook’s position.
However the Court decides the issue, the forthcoming ruling is likely to have significant impact on TCPA litigation across the country. Brooks Brown and his Goodwin TCPA team, which represents numerous clients in TCPA litigation and compliance matters, is closely monitoring the case and will provide additional information when the ruling becomes available.