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Free call deliverability test

The Supreme Court heard oral arguments in Facebook v. Duguid on the morning of Tuesday, December 8. This was the second major Telephone Consumer Protection Act (TCPA) case to be heard in front of the Supreme Court this year.

As expected, the arguments centered on the TCPA’s definition of automatic telephone dialing system (ATDS). The text of the law defines an ATDS as “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.” Both sides focused on grammatical arguments as to whether the phrase “using a random or sequential number generator” applies to both “store” and “produce” or only to “store”.

This seemingly nitpicky argument has had enormous consequences for TCPA litigation, particularly in the five years since the Federal Communications Commission’s (FCC) 2015 TCPA Omnibus Declaratory Ruling and Order. In oral arguments, the Justices and advocates for each side parsed and re-parsed the ATDS definition, sparring over rules of grammar, an obscure grammatical concept known as synesis, and even meta-concepts about how to read and interpret statutes. Chief Justice John Roberts mused about whether or not the proper way to handle this issue was to “look to the sense of the passage and not the syntax.” There were also debates over how the concept of human intervention applies to determining whether or not a device is an ATDS. There was a narrow but potentially meaningful debate about the word “automatic,” which is in the term itself but is not in the definition and is not defined elsewhere in the statute. In a notable exchange, the advocate for Duguid admitted that something like a button press or mouse click would qualify as human intervention.

Another important aspect of the ATDS question that was discussed throughout the arguments is the way dialing technology and the basic communications infrastructure has changed dramatically since 1991. Multiple Justices referred to the TCPA as being obsolete with regards to current technology, with Justice Clarence Thomas going as far as to suggest that it would be futile for the court to interpret it. Justice Neil Gorsuch tooled with the idea of SCOTUS literally declaring the statute to be obsolete, something without precedent. Justices Sonia Sotomayor and Elena Kagan repeatedly focused on the idea that Facebook’s definition of ATDS could potentially make every smartphone into an ATDS, something that the D.C. Circuit Court had argued in its 2018 decision in ACA International v. FCC, which overturned the FCC’s ATDS definition in the 2015 Declaratory Order.

The issues of technology and terminology were the focus of an interesting dispute regarding the connections, or lack thereof, between this case and Barr v. American Association of Political Consultants, the TCPA case that SCOTUS heard this summer. Both during oral arguments and in the plurality opinion written by Justice Brett Kavanaugh, multiple justices referred to the TCPA as an incredibly popular because of its role in preventing robocalls. Bryan Garner, serving as the advocate for Duguid, tried to tie this ruling into his arguments but both Justice Kavanaugh and Chief Justice Roberts pushed against this by making the distinction between the TCPA’s prohibitions against robocalls and its ATDS restrictions. Of course, the word “robocall” does not appear in the text of the law and is a fairly amorphous, colloquial term used more as pejorative than as a strict designation of a particular type of call or dialing method. Keeping with his arguments about the definition of ATDS, Duguid’s advocate attempted to draw a broad definition of “robocall” while Justice Kavanaugh and Chief Justice Roberts defined “robocalls” more narrowly as only describing prerecorded calls.

In Contact Center Compliance’s webinar conducted in the immediate aftermath of the oral arguments, the consensus opinion of the expert panel was that the court seems likely to rule in favor of Facebook, despite a commendable performance from Garner. However, that does not necessarily mean that the TCPA as we know it will be struck down. As the esteemed Eric J. Troutman of TCPAWorld pointed out in our webinar, one question in particular from one of the Justices opened up a previously unanticipated compromise outcome. When Justice Thomas asked if the TCPA applies equally to text messages and voice calls, it opened the possibility that the court could narrowly rule in favor of Facebook by ruling that the TCPA’s ATDS restrictions do not apply to text messages.

Even if the more likely result is an end to the TCPA’s restrictions on the use of an ATDS, that does not mean everything will be open season for callers. While the removal of this regulation will massively alter the regulatory landscape, the other provisions of the TCPA will remain in force, as will the TRACED Act and the various rules related to the National Do Not Call (DNC) Registry. More importantly, plaintiff attorneys will be likely to make greater use of state level telemarketing regulations in their litigation efforts. Many state telemarketing regulations carry broader restrictions and steeper penalties. While the days of multimillion dollar TCPA class actions may end if SCOTUS opts to strike down the ATDS restrictions, what follows in its wake could be an even more complex regulatory environment.

And now we wait for the court’s decision.