Plain-text Reading of TCPA Prevails in Facebook, SCOTUS Says Autodialers Must Store or Produce Numbers Using a Random or Sequential Number Generator
Few decisions in the world of the Telephone Consumer Protection Act (“TCPA”) have been more awaited than Facebook, Inc. v. Duguid, 592 U.S. — (2021). There, the Supreme Court of the United States (“SCOTUS”) wrestled with the ultimate TCPA question: “whether [an automatic telephone dialing system] encompasses equipment that can ‘store’ and dial telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” Slip Op. at 1. In the end, SCOTUS had little difficulty finding “[i]t does not.” Id. And the holding can be stated with simple clarity that businesses have sought for years:
To qualify as an ‘automatic telephone dialing system,’ a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.
The analysis of unanimous decision written by Justice Sotomayor “beg[a]n with the text” of the TCPA. Id. at 5. There, “Congress defined an autodialer in terms of what it must do (‘store or produce telephone numbers to be called’) and how it must do it (‘using a random or sequential number generator’).” Id. What follows that observation is a grammar lesson started in the lower courts, expounded by the parties’ briefing and oral argument, and now etched into SCOTUS canon (much to the chagrin of Justice Alito, see below). To set the stage, Justice Sotomayor wrote that “[t[he definition uses a familiar structure: a list of verbs followed by a modifying clause.” Id. And “[u]nder conventional rules of grammar, ‘when there is a straightforward, parallel construction that involved all nouns or verbs in a series,’ a modifier at the end of the list ‘normally applies to the entire series.’” Id. This is known as the “series-qualifier canon,” and the source for its explanation in Facebook was the well-known “Reading Law: The Interpretation of Legal Texts” penned by the late Justice Scalia and Brian Garner—counsel for Duguid on brief and oral argument.
After confirming other text-based grammatical and interpretive canons dictate the same result as the series-qualifier canon, Justice Sotomayor wrote that the context of the larger statute confirms the conclusion of a more myopic examination of the at-issue definition. Primarily, Facebook notes that a number of restrictions on the use of autodialers, including prohibitions on calls to “emergency telephone line[s]” and engaging “two or more telephone lines of a multi-line business . . . simultaneously,” contemplate harms that would only result from the use of technology that employs random or sequential means. Id. at 8. Put more colorfully, “[e]xpanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel.” Id.
Facebook made quick work of Duguid’s retorts, which Justice Sotomayor summed up as advocating for a definition that “accords with the ‘sense’ of the text.” Id. at 9. Unsurprisingly, given that lens, Facebook was unimpressed by Duguid’s arsenal of counter canons, such as the distributive canon, which generally requires several antecedents and consequents in a sentence structure—an issue for Duguid, given there was only one such consequent in the relevant text. Equally dismissed was Duguid’s parade of horribles regarding the “torrent of robocalls” resulting from adopting a plain-text reading. On that front, Facebook notes that the TCPA separately prohibits calls using “an artificial or prerecorded voice,” and Facebook “does not affect that prohibition.” Id. at 12. And even if there weren’t in-built protections against the torrent, “Duguid’s quarrel is with Congress, which did not define an autodialer as malleably as he would have liked.” Id.
Justice Alito penned a concurrence where he took issue with the over-reliance on the use of the series-qualifier rule as a basis of decision. First, he notes that it’s not a hard set rule or canon, even as it is described by Reading Law, cited by the majority. That writing takes great pains to note that it is not a mechanical rule and that “the sense of the matter”—or what makes good sense when read by a native English speaker—is the true rule that the series-qualifier attempts to describe. Second, Justice Alito voiced concern that the opinion indicates—without explicitly saying so—that the analysis lends itself to interpretation by lower courts as a “if canon says X, result Y”: “When this Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations.” Slip Op., Alito, J. concurring, at 4.
Facebook resolves a fight fought for years. The most recent and notable bouts were the 2015 Declaratory Ruling and Order by the Federal Communications Commission (“FCC”) that expounded the “if it could be an ATDS, it’s presently an ATDS” standard and the 2018 ACA Int’l v. FCC decision by the Court of Appeals District of Columbia Circuit, which found that standard wanting. But issues and key TCPA prohibitions remain. First, and as noted by the Court today, the prohibition on artificial and prerecorded voicemail remains untouched. Second, though bound by the statute and the meaning of its words as ascribed by SCOTUS, the FCC remains able to issue guidance and promulgate rules interpreting the TCPA that can create confusion, and thereby litigation. Third, nothing today creates an issue Congress can’t address.
The immediate fallout of Facebook will be clear cut enough. Notices of supplemental authority and dispositive motions will be filed in bulk for matters that rely on the use of an autodialer, because (as Duguid argued fervently) technology has long passed random and sequential number generators. The longer view remains less clear. Putting aside the FCC and Congress, a great many district courts and clever counsel may yet find other statutes that benefit from a plain-text reading using the series-qualifier canon. After all, if it ain’t broke…