U.S. Supreme Court Signals Narrow Interpretation of TCPA’s Autodialer Definition

December 15, 2020

UpdateOn April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved the circuit split regarding the meaning of “automatic telephone dialing system” under the Telephone Consumer Protection Act. For more details, see our alert.

On Dec. 8, 2020, the U.S. Supreme Court heard long-awaited oral argument in Facebook v. Duguid on what constitutes an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA).

As reported by McGuireWoods in March and July 2020, the definition of ATDS has created a circuit split, with some courts broadly interpreting ATDS to include any equipment that can automatically dial numbers from a list, and other courts narrowly interpreting ATDS to reach only equipment that uses a random or sequential number generator.

Given the unique remote format of the oral argument, each Supreme Court justice had equal time to address counsel for the parties. Though there is no way to predict how the court will ultimately rule, the justices’ questions appeared to favor a narrow reading of the ATDS definition, in part due to the “ill fit” between the statute and the current state of technology. This alert offers analysis of each justice’s reaction to the ATDS issue.

Justice John G. Roberts Jr. Should the Supreme Court’s interpretation of ATDS hinge on rules of construction and syntax, the most natural meaning to an ordinary speaker of English, or the potential consequences of the court’s ruling? Justice Roberts asked these questions and hinted at his view of the answers. Justice Roberts seemed to agree with the plaintiff that the court’s objective is to “settle upon the most natural meaning of the statutory language to an ordinary speaker of English,” but he appeared to believe that the defendant’s narrow interpretation makes the most sense to an ordinary speaker. Thus, Justice Roberts appears to be leaning toward a narrow interpretation.

Justice Clarence Thomas. Does the TCPA apply to text messages? Acknowledging that this issue is not central to the case, Justice Thomas asked why a text message is considered a call under the TCPA, an issue addressed in an October 2020 McGuireWoods alert. Since only Justice Thomas raised this threshold question, it seems unlikely the court will address this issue in its ruling. The remainder of Justice Thomas’ questions focused on whether the TCPA “is an ill fit for current technology.” He suggested that it is “odd” and potentially “futile” to apply a statute that “really wasn’t intended for the universe in which we are operating now.” Justice Thomas’ questioning appears to signal that he agrees with a narrow interpretation of the statute and believes it is the role of Congress to update the statute to keep up with modern times.

Justice Stephen G. Breyer. When interpreting a statute, shouldn’t the Supreme Court consider the statute’s purpose, text and potential consequences? Justice Breyer’s questions demonstrate that he is concerned with the “absurd” consequences that may result from a broad interpretation of ATDS — specifically, that a broad definition could potentially encompass smartphones. Justice Breyer told Facebook’s counsel that the defense had “a pretty strong case” on consequences and purposes, potentially signaling that Justice Breyer favors a narrow interpretation.

Justice Samuel A. Alito Jr. Does it make any sense to speak about storing a list of telephone numbers using a random or sequential number generator? Justice Alito appeared to agree with Justice Roberts that the Supreme Court’s objective is to interpret the statute in the way that makes the most sense to an ordinary person, and that the court should not be concerned with potential consequences. Justice Alito questioned, however, whether the defense interpretation makes any sense. He challenged Facebook’s counsel to explain how a number generator could be used to “store” numbers. On the other hand, Justice Alito stated that the “greatest practical problem” for the plaintiff was the issue of call forwarding — i.e., the fact that decoupling the use of random- or sequential-number-generation technology from the verb “store” means that the definition of ATDS would encompass ordinary telephones with call-forwarding or speed-dial features. The fact that Justice Alito identified problems facing both sides makes it difficult to predict which way Justice Alito is leaning.

Justice Sonia Sotomayor. Is the TCPA an outdated statute that Congress, rather than the Supreme Court, needs to update? Like Justice Breyer, Justice Sotomayor expressed a concern that a broad interpretation of ATDS would reach “too many devices,” including smartphones. Justice Sotomayor suggested that this problem may have more to do with the fact that the TCPA is outdated and less to do with the plaintiff’s broad statutory interpretation, and proposed that it would be Congress’ job “to update the TCPA to bring it in line with the times.” She also expressed concerns that a broad interpretation could affect the development of new technology to help people do things more quickly, but in the process, violate the statute. Accordingly, Justice Sotomayor appears to be leaning toward a narrow definition.

Justice Elena Kagan. If both interpretations of ATDS are possible, shouldn’t the Supreme Court adopt the meaning that is more grammatically correct? Justice Kagan pointed out issues with both parties’ interpretations of ATDS. Like Justice Alito, Justice Kagan argued to Facebook’s counsel that it is awkward to speak of equipment storing numbers “using a random or sequential number generator.” But Justice Kagan took the flip side of the argument with the plaintiff’s counsel, arguing that there is nothing “impossible” about Facebook’s reading of the statute because there were in fact “devices that generated numbers for immediate dialing and devices that stored numbers for later dialing.” Justice Kagan also suggested to the plaintiff’s counsel that the broad interpretation is “ungrammatical” and that where both meanings are possible, the court should adopt the definition that is the most grammatically proper. On the other hand, Justice Kagan questioned why Congress would have wanted the TCPA to depart from state statutes in existence at the time, all of which were broad. Given that Justice Kagan raised points against both sides, it is difficult to predict which way she is leaning. 

Justice Neil M. Gorsuch. Is there a fourth potential interpretation of ATDS? Justice Gorsuch asked whether the Supreme Court should consider the “fourth reading” of ATDS from the 7th U.S. Circuit Court of Appeals’ opinion in Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020), a decision authored by Justice Barrett. Pursuant to the fourth interpretation, “using a random or sequential number generator” modifies how the telephone numbers are “to be called” rather than modifying “store” or “produce.” Adopting the fourth reading would be a win for defendants because the statutory definition would be limited to devices that use a random or sequential number generator to dial phone numbers. Justice Gorsuch additionally raised concerns with the plaintiff’s broad interpretation, including that it is grammatically incorrect and would have been overbroad even at the time the TCPA was enacted because it would have included devices that could redial stored numbers. Justice Gorsuch also pushed back on the plaintiff’s argument that the definition of ATDS is not overly broad because it requires human intervention, with Justice Gorsuch pointing out that the definition of ATDS does not use the word “automatic.” Accordingly, Justice Gorsuch seems to favor a narrow interpretation.

Justice Brett M. Kavanaugh. What was the real-world problem Congress wanted to solve with the ATDS provision and does that concern still exist today? Justice Kavanaugh focused on the fact that the TCPA has two distinct prohibitions: one that covers artificial and prerecorded voice calls, and one that covers ATDS calls to cell phones and other specialized numbers. He was interested in understanding why Congress separated the two provisions and limited the ATDS portion of the statute to cell phones and other specialized numbers. He asked questions confirming that even if the Supreme Court adopted the narrow view of ATDS, the prohibition on prerecorded and artificial voice calls would remain intact. Additionally, he appeared to believe that the ATDS provision was not intended to protect privacy since it does not apply to residential lines. Because of the high-level nature of Justice Kavanaugh’s questions, it is difficult to predict how he is leaning.

Justice Amy Coney Barrett. Does the auto-reply function on a smartphone require sufficient human intervention to bring it outside the definition of ATDS? Justice Barrett signaled that, consistent with the opinion she authored in Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020), she believes the definition of ATDS should be interpreted narrowly. Although the plaintiff’s counsel had argued that a smartphone and other technology is not an ATDS because they require human intervention to place calls, Justice Barrett pointed out that the auto-reply function on the iPhone does not require human intervention. Justice Barrett’s line of questioning, paired with her opinion in Gadelhak, makes it likely that Justice Barrett favors the narrow interpretation of ATDS.

Though oral argument questions are not necessarily a surefire way to predict how the Supreme Court will ultimately rule, it appears that the majority of justices may be leaning in favor of adopting a narrow interpretation of the definition of ATDS, which will provide much-needed relief to businesses that engage in calling and text messaging. 

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