As noted in Jeff Sovern’s post last week, the Supreme Court ruled last Thursday in the case of Facebook v. Duguid that the Telephone Consumer Protection Act (TCPA) does not apply to robocalls and robotexts sent to cell phones unless they are sent from equipment that uses a random or sequential number generator. The decision has the potential to allow a vast increase in the number of automatically dialed junk and scam calls and texts to cell phones. Senator Ed Markey and Representative Anna Eshoo have already announced that they intend to introduce legislation to overturn the decision by making crystal clear that the TCPA’s robocalling ban applies to calls that are automatically dialed from databases of stored numbers, not just calls to numbers that are generated randomly or sequentially.
The decision in Facebook v. Duguid is based on a narrow reading of the TCPA’s definition of an “automatic telephone dialing system” or ATDS. The definition is central to the Act’s robocall provision, which prohibits unconsented-to calls to cell phones made using an ATDS. The awkwardly worded definition says that an ATDS is equipment that can “store or produce telephone numbers to be called, using a random or sequential number generator,” and “dial such numbers.”
Everyone agreed that the definition covers a system that uses a random or sequential number generator to create numbers to be called. The question in the case was whether a system that automatically calls stored numbers also has to use a random or sequential number generator. Because it makes little or no sense to refer to storing numbers using a random or sequential number generator, TCPA plaintiffs (backed by the majority view in the courts of appeals) argued that the most sensible reading of the statute is that the phrase “using a random or sequential number generator” modifies only “produce,” not “store.” Defendants, on the other hand, argued that the most grammatical reading of the sentence is that the phrase modifies both store and produce.
The difference matters a great deal because most robocalls are made from databases of stored numbers that callers know correspond to real telephone users—typically people the callers know something about and are targeting for that reason. Most robocalls aren’t made to hypothetical telephone numbers that the caller cooks up randomly or sequentially.
However, a unanimous Supreme Court, woodenly applying its views of proper grammar and “canons of construction” reflecting them, chose a reading likely to substantially impair the utility of the TCPA as a bulwark against the robocalls and robotexts that plague cell phone users. The Court’s reading reduces the statute to a narrowly targeted response to a problem that no longer exists—the use of “telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.” Viewing the robocalling provision as intended to be limited to these specific abuses, the Court held that adopting a broader reading would “take a chainsaw to these nuanced problems.”
Instead, the Court took a chainsaw to the TCPA.
The Court’s opinion leaves open the possibility that at least some systems that place robocalls from databases of stored numbers may still be covered by the ATDS definition. The Court suggested in a footnote that a system that uses an automatic or sequential number generator to determine the order in which numbers will be called, by selecting and producing them from a database randomly or sequentially, would be covered under its interpretation. Future litigation may therefore center on whether the technology used to produce numbers from storage uses a random or sequential number generator.
Whether or not such litigation may succeed in bringing back within the TCPA’s coverage some portion of the universe of robocalls placed to numbers stored in databases, a legislative approach will likely be necessary to ensure that cell phones are not overwhelmed by automatically dialed calls and texts from the innumerable telemarketers and others who have our cell numbers and now are likely to conclude they can place robocalls to them with impunity.
(Note: The author of this post was cocounsel in the Supreme Court to the consumer plaintiff in Facebook v. Duguid.)