“At what point do we simply say . . . this statute is an ill fit for current technology?” – Justice Clarence Thomas

Nearly 3 decades before Zack Morris ascended to the fictional governorship of California in NBC’s reboot of Saved by the Bell, he was America’s best known Preppy—the cool kid with politician hair toting the raddest, most cutting edge, must-have gizmo his Dad’s money could buy: a Motorola DynaTAC 8000X. Yes, I mean the “brick” phone.

Standing 13 inches tall and weighing nearly 2 lbs., it was a marvel of its time. To say the now comically oversized “mobile” device is outmoded should offend no one. Moore’s Law may be on its death bed (if not already at an end), but it departs having made its mark over the last 30 years. Unceasing progress brought forward a technological milieu bearing almost no resemblance to the world of early 90’s Bayside High. Once-Jetsonian gadgets like portable CD players, VCRs, and camcorders began collecting dust in thrift stores long ago. Shrinking cell phones replaced pagers in hip clips. Answering machines were relegated to Seinfeld re-runs.

Another relic of the era fared better. Not only did the Telephone Consumer Protection Act of 1991 (TCPA) stay relevant as the technology it meant to regulate grew obsolete, but evolving views of the Act’s provisions regulating the use of an “automatic telephone dialing system” (ATDS) gave birth to a multi-billion dollar litigation windfall more than 20 years later. How?

The Advent of the TCPA

Congress enacted the TCPA in 1991 to remedy a particular set of ills. The advent of computer-assisted telephone dialers made it possible for telemarketers and scammers alike to flood American phone lines—residential, mobile, business, and emergency—with thousands, and sometimes tens of thousands, of junk faxes and unwanted solicitations in a single campaign. Indiscriminate use of the new technology to blast calls randomly, and in rapid succession, became a “scourge of modern civilization.” As described by the bill’s sponsor, Senator Fritz Hollings:

They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall . . . . These calls are a nuisance and an invasion of our privacy.”

Fed-up consumers made their displeasure clear to the Federal Communications Commission (FCC) and State commissions, prompting a range of legislative responses including the TCPA.

While residential telemarketing calls drove the bill, the pernicious impacts of robocalls were broader. Unsolicited calls tied up emergency phone lines at police stations, hospitals, and fire stations, particularly when blasted to large blocks of sequential numbers. They made it impossible for small businesses to use their phones and fax machines for long periods. They filled up answering machine tapes, preventing consumers from receiving important and personal messages they actually wanted. And in many cases the not-insignificant cost of each contact was stuck to the unwilling recipient.

The TCPA sought to remedy these concerns in two key ways. First, the Act broadly barred robocalls, i.e., non-emergent, non-consensual calls made using “an artificial or prerecorded voice,” to all residential phone lines and certain categories of non-residential lines—including those associated with a wireless, fax, or pager service. Second, Congress barred non-emergent, non-consensual calls made to wireless and other non-residential lines using an ATDS, which it defined to mean “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 calls.”

Critically, Congress choose not to effect its policy aims by penalizing the act of dialing automatically. It could have conditioned liability on a caller’s actual use of a particular device as some suggested. It elected instead to target the capacity of the dialers being used to call, however used. Liability, then, would attach to any call from any equipment qualifying as an ATDS—whether dialed automatically or not. But the Act’s reach would extend only so far as the definition of ATDS allowed.

Initially, it did not reach far.

The Ascent of the TCPA

It may surprise the casual observer to learn the “TCPA lawyer” is a recent phenomenon. TCPA litigation barely existed in the 90s. The niche but now mind-numbingly profitable industry began to develop for the plaintiff’s bar in the late 2000s as the Obama-era FCC sought to redefine ATDS to capture new forms of modern dialing equipment. The plan worked. Courts forced to defer to a series of expansive FCC rulemakings opened the floodgates to a wave of class and individual plaintiffs ready to cash in. The Act’s lucrative damages ranging from $500 to $1,500 per prohibited call or text proved a compelling incentive. The number of plaintiffs filing TCPA claims ballooned from 14 in 2008 to 827 in 2011, rocketed to 3,015 in 2014, and peaked at 4,638 in 2016 according to WebRecon LLC.

The financial and operational impacts of the TCPA bonanza were huge. By way of example, a compilation of five U.S. businesses (Caribbean Cruise Line, Capital One, Dish Network, US Coachways, and AT&T Mobility) paid in excess of $300 million dollars to settle unrelated TCPA class actions from 2014 to 2017, presumably at pennies on the dollar to their true exposure. The sum of publicly reported class settlements over the last decade exceeds a billion dollars, not including defense costs, settlements of thousands of additional claims by individuals, penalties in FCC enforcement actions, and jury verdicts as high as $925,000,000. Virtually every major player in all sectors of the U.S. economy felt the impact; this, even though the TCPA—relevant text unchanged—was on no one’s radar a decade ago.[1]

The Reset of the TCPA

Not long after reaching its zenith, the TCPA landscape transformed again. The D.C. Circuit in ACA Int’l v. Fed. Commc’n Comm’n, 885 F.3d 687 (D.C. Cir. 2018), invalidated key portions of earlier FCC rulemakings driving the groundswell of TCPA litigation. Key here, the court vacated a 2015 FCC Order that redefined ATDS to cover dialers with the potential capacity to dial random or sequential numbers, even if it lacked the present ability to do so. Despite rejecting the FCC’s definition as “unreasonably, and impermissibly, expansive,” the D.C. Circuit did not offer a replacement. Nor has the FCC since issued an order reinterpreting the term.[2]

Left to their own devices[3] a majority of district courts moved to narrow the Act’s reach citing its text, the nature of technology in 1991, and the FCC’s position in early guidance. Others disagreed. All encountered difficulties with the placement and punctuation of the phrase “using a random or sequential number generator” within Section 227(a)(1)(A) of the Act.

The result was a hodgepodge of conflicting opinions and at least four main treatments described by then-Judge Barrett in Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020): (1) the phrase might modify both store and produce, meaning a device must be able to do at least one of those actions using a random or sequential number generator to be an ATDS; (2) the phrase may describe the telephone numbers themselves, limiting an ATDS to a device that dials randomly or sequentially generated numbers; (3) the phrase may attach only to the word produce, bringing devices with the mere ability to store and dial numbers with the statute’s ambit; or (4) the phrase may refer to the manner of dialing numbers no matter how they are generated, stored, or produced.

Over time, competing camps began to coalesce around the first and third interpretations. In Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018), for example, the Third Circuit elected to return to its pre-2015 interpretation of the Act holding that a dialer cannot qualify as an ATDS unless it has the present ability to randomly or sequentially generate numbers and to dial them. The Eleventh and Seventh Circuits followed with similar interpretations of the Act, buoying the defense bars in the TCPA plaintiff-heavy federal district courts of Florida and Illinois.[4]

California defendants had no such luck. The Ninth Circuit in Marks v. Crunch San Diego LLC, 904 F.3d 1041 (9th Cir. 2018), ruled consistent with the third interpretation that a system capable of sending text messages to a list of stored telephone numbers was an ATDS. Taking a slightly different path, the Marks court emphasized two main factors in support: (a) Congress’ decision to allow ATDS calls made with prior express consent, which the Court reasoned would require the caller to dial specific numbers from a prepopulated list; and (b) Congress’ decision to leave the core definition of ATDS untouched when amending the TCPA in 2015, which the court viewed as a tacit endorsement of the FCC’s pre-ACA Int’l definition.[5] In so holding, the Marks court rejected the Dominguez opinion as “unpersuasive” because it flowed from the “unreasoned assumption that a device must be able to generate random or sequential numbers in order to qualify as an ATDS.” The Second and Sixth Circuits later reached similar results solidifying a circuit split.

The consequence for businesses with texting or calling programs is that, as of this writing, a caller’s potential liability for a initiating a single series of contacts varies wildly by jurisdiction—even if made from a single device or system. Companies sued in the Third, Eleventh, and Seventh Circuits can benefit from a narrowly tailored view of the statute that excludes most dialers now in use. Unfortunate targets in the Ninth, Second, and Sixth Circuits face interpretations arguably as expansive as the FCC’s failed 2015 approach. Defendants in other circuits are left to guess.

Fortunately the TCPA’s seesawing uncertainty may soon end, for better or worse. The Supreme Court held oral argument on December 8 in Facebook, Inc. v. Duguid, et al., with advocates sharply contesting whether and, if so, how the Act applies to modern dialing systems. Though the outcome is anyone’s guess, the Justices’ questions elucidated key concerns that could control when they decide whether to cancel (or cement) the plaintiff’s bar’s multi-billion dollar TCPA boondoggle.

Facebook, Inc. v. Duguid, et al.

Aptly described at argument as “very nuanced” language that reflects a “great deal of legislative compromises,” the ATDS definition has become a grammarians’ coup.

Thankfully three of the country’s premier appellate advocates were on hand to help make sense of things. Former U.S. Solicitor General and Supreme Court pro Paul Clement represented the petitioner, Facebook. Texas’ own Bryan Garner, a top expert on modern legal usage (and famous sparring partner to the late Justice Scalia), appeared for the respondents. Joining them from the Office of the Solicitor General was a former law clerk to Justice Roberts and Bristow Fellow, Jonathan Ellis.

The parties’ arguments in Duguid brought into sharp relief the difficulty that so many have faced pinning down the exact role Congress intended the phrase “using a random or sequential number generator” to play within the ATDS definition. No shortage of intellectual firepower was on display as the lawyers and Justices delved into grammatical concerns like sentence structure, syntax, and synesis. The panel heard talk of restrictive modifiers, punctuation, modifying phrases, and direct objects. Later, disjunctive and lexical verbs moved to the fore. More than anything, though, the advocates’ expertly nuanced grammatical dissertations landed softly.

Most of the Justices showed resignation to the statute’s shortcomings. While challenging the respondents’ characterization of the text as “grammatical,” Justice Gorsuch politely quipped he’d expect Mr. Garner—an expert legal writer with a knack for clear prose—to rewrite the statute. Justice Alito separately suggested that if the Court had the power to declare the statute obsolete, it might be useful. Others pointed to apparent fault lines in both parties’ positions.

Possibly joining Justice Barrett in seeing only “imperfect” solutions, the bench brushed back efforts to engage on canons of interpretation and rules of syntax mostly irrelevant in ordinary speech. More practical concerns took precedence. What kind of dialers existed in 1991? What capabilities did they have? How did Congress intend to regulate that equipment? How does the text of the statute apply to modern devices, business and personal? How would the Court’s adoption of each alternative impact callers and call recipients? A greater picture emerged as the Justices explored the different facets of the competing regimes proposed.

Static or Dynamic?

Several Justices wondered if the parties’ interpretational fixes, if adopted, would rewrite the law. That is, if the problems posed are rooted in the particularities of technology unknown to Congress in 1991, in the words of Justice Sotomayor, “wouldn’t it be [Congress’] job, not [the Court’s], to update the TCPA to bring it in line with the times?” There seemed to be disagreement nonetheless whether: (A) the text captures virtually all dialing equipment, meaning it is Congress’ job to curtail the statute’s nearly unlimited reach, or (B) the text captures a much more limited set of modern dialers, meaning Congress—not the Court—must act to prevent the wave of unsolicited calls and texts the respondents believe it will permit.

If one accepts that the meaning of the text is static, a compelling case can be made that the respondents’ construction would do the most violence to the prevailing view at enactment. Favorably for callers, the FCC’s earliest guidance mirrors Facebook’s position in Duguid that merely storing and dialing numbers does not trigger the ATDS provision. In its 1992 Order[6] the FCC explained the ATDS calling restriction “clearly do[es] not apply to functions like ‘speed dialing,’ ‘call forwarding,’ or public telephone delayed message services . . . . because the numbers called are not generated in a random or sequential fashion.” Its 1995 Order likewise described “calls dialed to numbers generated randomly or in sequence’ as ‘autodialed.’”

The early guidance may have less impact, however, if a majority of the Court views the text as being “dynamic.” Justice Breyer, for one, was interested to explore whether Congress intended for the TCPA’s terms to change alongside advancing technologies. If so, he noted the Court often “interpret[s] a statute dynamically to adapt to changing circumstances, looking at the context in which it is passed and how it’s changed, in order to decide how to do so.”

Callers would not be wrong to see this as a potential obstacle to the outcome they seek. Elevating soft factors at the expense of the statute’s text could bolster the respondents’ privacy-based policy arguments. Even still, the interpretational tools at hand must work within the text as written. And the principal advocate for a dynamic view, Justice Breyer, himself remarked at argument that Facebook has a “pretty strong case on the consequences and purposes.”

A hypothetical helps us understand why. Imagine that the State of California wanted to stop a scourge of prank calls to Bayside High School principal, Richard Belding, in 1991. Assume its legislature chose to do so (1) by barring the making of nonconsensual calls to Mr. Belding “using a cellular telephone,” and (2) by defining “cellular telephone” based on then-common features to mean any “portable electronic device which has the capacity – (A) to make wireless telephone calls, using a keypad and LED screen; and (B) to receive such calls.” By targeting the devices that Zack Morris and others were known to employ at enactment, the statute would have achieved its aim. If left unchanged for 30 years, no one could sensibly read the language to prevent now-Governor Morris from making prank calls from his iPhone between campaign stops—even if many Californians still adore Mr. Belding.

One could try. Analogizing to the respondents’ position in Duguid, an enterprising plaintiff’s attorney might argue the statute should be read to bar calls made to Mr. Belding without his prior express consent using a “portable electronic device which has the capacity to receive [wireless] calls.” The problem is apparent. No one would be able to call Mr. Belding from any device without possibly violating the statute. The reading would capture Governor Morris’ sophomoric antics at the expense of every concerned parent or friend contacting Mr. Belding from an ordinary smartphone. Viewing the statute in this way goes well beyond its original purpose with harmful consequences.

Many on the Court seem to see the ATDS restriction as sharing a similar overbreadth problem.

Practical Consequences

Encouraging for callers, several of the Justices voiced skepticism that Congress intended for the TCPA to reach the extraordinary range of conduct that respondents’ reading would capture.

• Justice Sotomayor expressed grave concern that the respondents’ approach would subject everyday Janes and Joes to a new wave of TCPA claims when using their iPhones.
• Justice Gorsuch similarly implied the TCPA could “make a criminal of us all” if the Court accepts respondents’ view. Giving a specific example, he noted the capacity of most phones to redial missed calls from a list of stored numbers at the click of a button.
• Justice Barrett echoed her concern in Gadelhak that auto-replies from an iPhone would fall within the scope of the statute, thus covering all calls made using that device.[7]
• Justice Alito noted the practical problem for the respondents’ view comparing the function of call forwarding technology that was widely available in 1991 and the capacity of smartphones to dial numbers “automatically” based on pre-programmed commands.[8]
• Justice Thomas went further to question whether Congress meant for “calls” to include text messages, a huge source of TCPA liability for conduct not possible in 1991. While not squarely at issue, he wondered whether the statute sensibly applies to texts at all.

Mr. Garner’s parries to these concerns, when not rejected outright, tended to demonstrate the vulnerability of the respondents’ position. They also often were at odds with past precedent and the familiar positions advanced by plaintiffs in prior cases involving human intervention.

The most glaring example of this was an exchange with Justice Sotomayor. Agreeing with Facebook’s view that respondents’ interpretation would subject “every cell phone owner . . . to the harsh criminal and civil penalties of the TCPA,” Justice Sotomayor asked for an explanation of why Congress would have intended that result. She added, “please don’t answer by saying it hasn’t happened yet, and the reason I say that is because, if you get a ruling in your favor, I know for sure that there will be lawsuits against individuals that will follow.” (Emphasis added.)

It was a difficult question, and from the author’s view the most critical of the day, because there was, and is, no good answer for the respondents. Let’s take Mr. Garner’s responses in turn.

1. Article III judges know how to deal with frivolous claims. Sure, within the limits of the tools available to them, but this point presupposes that the claims will wholly lack merit. In the Justice’s hypothetical, the opposite is true. Courts will be forced to reckon with these claims in the ordinary course. Individual defendants will be forced to hire lawyers or appear in federal court pro se. Ordinary folks will face statutory damages claims that can bankrupt them.
2. The average person will not use her smartphone as an autodialer. Okay, this is probably not true in the context of the Act, but it does not matter. In the Justice’s hypothetical, at least one standard feature available to smartphone users will implicate the statute. Whether a person uses that feature does not matter. Congress structured the statute to focus on a device’s capacity, not use. Mr. Garner seemed to suggest the Court could read the missing use limitation into the ATDS restriction based on the fact of the word “automatic” in ATDS. It is doubtful whether the plaintiff’s bar agrees, nor have courts accepted the position. A later exchange with Justice Gorsuch showed why it goes too far:

JUSTICE GORSUCH: [A]ll the statute says is you have to have equipment that stores a number and can be used to dial the number.

[. . . .]

GARNER: [T]hat’s the word being defined, automatic dialing system, and it must be the equipment itself that does the dialing.

JUSTICE GORSUCH: No, the equipment has to have the capacity to store and it has to have the capacity to dial. It doesn’t say it must do it solely by itself. I mean, now we’re really changing the grammar, aren’t we?

[. . . .]

GARNER: Your Honor, it’s — it’s not considered automatic when — when you place the call if you press the button. [. . . .]

JUSTICE GORSUCH: Congress can define anything to mean anything it wishes, right?

GARNER: That’s correct, Your Honor.

JUSTICE GORSUCH: All right. So it can define an automatic dialing system to mean whatever it wishes, and, here, it defined it to mean equipment which has the capacity to dial a stored number on your interpretation.

3. The ordinary smartphone user will have consent. Perhaps in the colloquial sense of the word, but they almost certainly will not have given prior express consent to receive calls made using an ATDS or prerecorded messages as the relevant defense requires. The question of consent has been a tricky one since the Act’s inception. Without wading into what presently qualifies, one can argue that, if society knows every smartphone to be an ATDS, some of the everyday communications a person shares with friends, family, and others could be deemed as being made with consent. But in this very best case scenario, the affirmative defense cannot be made until summary judgment—only after the individual defendant and courts have incurred significant time and costs. Plus, the gaps are enormous. As experienced TCPA callers know too well, numbers are reassigned. Phones are shared. Consent is revoked. What’s more, if consent is our best defense against back-breaking TCPA liability, every smartphone will need to track consent. Every call will have to be recorded. Personal texts will require opt-out language. (Let’s not.)

In other instances Mr. Garner sought to soften the blow of respondents’ reading by interjecting human intervention as a factor that could save ordinary smartphone users from TCPA liability. Setting aside the capacity problem inherent in this argument, it suffers from a separate malady. The FCC and courts have been unable to articulate a bright-line rule that properly addresses the wide array of manual inputs or processes, always evolving, that might qualify as human intervention. Consequently, if the Court were to write a “human intervention” component into the statutory definition, it almost certainly would adopt a case-by-case approach. As with consent, the first opportunity to prevail on this defense would be at summary judgment. In addition, fact disputes would abound, thereby subjecting regular smartphone users to arduous, expensive trials. The statute’s structure does not appear to support the respondents’ proposed reliance on human intervention. Even if it did, availability of the defense would offer minimal practical relief.

Respondents’ Retreats to High Ground

Probably sensing the difficulties of his position as it relates to ordinary smartphones, Mr. Garner frequently pivoted to policy. There is no question whether protecting privacy is a goal of the TCPA, particularly the privacy of the home. With cell phones having replaced many residential lines as Americans’ sole or preferred means of contact, some argue the Court should read the Act to provide equal protection. Others contend the invasion of privacy risks are even greater, requiring even more stringent protections as cell phones invade most areas of contemporary life.

As framed by Mr. Garner, Facebook advances a “viperine interpretation” of the statute to terrible effect: “Like a viper, it kills the statute and privacy.” A bit melodramatic, maybe, but the argument makes what is the respondents’ strongest point well. An inconvenient truth for callers is that adoption of Facebook’s approach could pave the way for some added amount of unwanted calls being made to cell phones, which the Court could find crosses Congress’ privacy objective.

That is not to say a majority of the Court will find the TCPA’s privacy interest paramount. Justice Kavanaugh smartly noted during oral argument that Congress chose not to subject residential calls to the ATDS restriction. Its choice is at odds with the respondents’ focus on privacy as a lodestar because residential lines were far more ubiquitous and often a sole means of contact when the statute was enacted. It also invites consideration of whether Congress’ institution of an ATDS prohibition was “about something other than privacy” as Justice Kavanaugh hinted.

Thinking back to the societal ills prompting the Act, it is a reasonable inference to draw. Relatively few people had cell phones in 1991. Those phones were bulky. Some stayed in the car. Others sat in a bag. Even the most advanced phones lacked the battery life to be a constant companion. The threat of bombardment to all people, at all places, at all times was minimal. But the phones were expensive, with costly pay-by-the minute calling plans. Perhaps, then, Congress’ main aim in limiting calls made using an ATDS was a financial one. And perhaps the point in other instances, such as with emergency calls, was to advance safety. If the Court agrees, it could help tip the scales in favor of Facebook.

In addition, the Court could point to other factors weighing against the much-ballyhooed onslaught of debt collection and telemarketing calls a ruling for Facebook purportedly would unleash. Other provisions of the TCPA will remain intact, along with the FCC’s enforcement authority under the Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994. The Fair Debt Collection Practices Act (FDCPA) and state statutes governing a range of calling activities will remain. And the FCC will continue to partner with carriers to block spam robocalls and texts. Still, no one, presumably including each of the Justices, looks forward to the prospect of any new random, unwanted calls.

Facebook’s Surplusage Problem

The most significant threats emerging for callers at oral argument related to the surplusage canon. Questioning from Justices Kagan, Alito, and Gorsuch suggested that, in their estimations, Facebook’s reading hinged on whether Congress sensibly could have meant the phrase “using a random or sequential number generator” to modify “to store” in 1991.

1. Does it make sense to write a definition about a system using a random or sequential number generator in the very process of storing telephone numbers?
2. Second, if yes, did equipment in operation employ such a process?
3. Third, if yes, does it matter whether at least one or more examples of that equipment only used a random or sequential number generator when storing numbers?

Mr. Clement and Mr. Ellis appeared to clear these hurdles citing industry amici briefs detailing the equipment available to callers in 1991. Because there were devices that used random and sequential number generators to produce numbers for immediate dialing, or to store them for later dialing, it would have been natural in their views for Congress to describe both functions in the ATDS definition. More broadly, Mr. Clement responded to Justice Alito that Facebook’s interpretation squares with the sense of the statue considering Congress was capturing a process:

[T]o get to the heart of your question, I don’t think there’s anything nonsensical or redundant about talking about using a random generator, number generator, to store numbers. I think it’s not any different in principle with the phrase that a lot of people have used to describe the sense of the ATDS prohibition, which prohibits dialing of numbers using a random or sequential number generator. In both contexts, I think the senses are very sensible — the sentences are very sensible. They just mean that you’re using the number generator not to do the actual dialing or the actual storing but as part of the process of storing telephone numbers to be called or part of the process of dialing telephone numbers to be called. And I think, if you understand the terms in that way, they make perfect sense in — in normal English. And I think what they really get at is the idea that Congress was trying to prohibit the use of a random or sequential number generator, either for immediate dialing, which would be produced, or for later dialing, which would be captured even more aptly by the verb “to store.”

As a fallback, Mr. Ellis added that Congress could simply have adopted a belts-and-suspenders approach when attempting to capture the process of random number generation by dialers. Citing precedent from other cases, he argued it would be appropriate in such an instance to disregard other ordinary rules of grammar and canons of construction including superfluity.

Whether a majority of Justices accept some combination of these arguments (or consider a fourth interpretational approach from Duguid that Justice Gorsuch raised)[9] could be key.

Luckily for callers, any perceived surplusage problem for Facebook carries less weight for another reason: the respondents’ interpretation has the same problem and worse. If the Court adopts an interpretation that captures every device that stores and dials numbers, the phrase “using a random or sequential number generator” will no longer have a role to play. Maybe that is what the phrase deserves for the trouble it has caused, but it would not align with the FCC’s original understanding. Reading the central element out of Congress’ definition also smacks of judicial overreach.

Conclusion

In his summation, Mr. Garner branded the Duguid proceeding as “not a case about cell phones dialing” but “about cell phones being called.” In truth, it is not about either. It is about equipment dialing cell phones—equipment now as common as Zack Morris’ brick phone.

As cogently argued by Mr. Clement:

Congress targeted a very specific problem in this provision, a problem that was prevalent in 1991. I think it was successful in eradicating that specific technology, and my friend would like to use the synesis or the sense of the statute to repurpose the statutory prohibition to address more modern ills. [ . . . .] I don’t think it’s something [the Court] should really consider, and I think it gives too little credence to Congress’s own ability to address these problems in an ongoing way.

The author is cautiously optimistic a majority of the Court will agree.

[1] Consider that case filings in default-driven, comparatively low-value FDCPA actions numbered 10,376 in 2009 according to WebRecon. The annual sum grew a healthy 27% in 5 years to 13,172. Meanwhile TCPA filings not uncommonly prompted by the same or similar contacts grew a staggering 6,459% (39 to 2,558).

[2] A July 2020 declaratory ruling by the FCC’s Consumer and Governmental Affairs Bureau on the TCPA’s application to certain peer-to-peer (P2P) messaging platforms may suggest the Commission favors reigning in ATDS liability. Without parsing the statutory definition, the Bureau reasoned whether a specific device or platform is an ATDS turns on whether it is capable of performing the statutorily defined functions “without human intervention.” While notable for defining ATDS more narrowly than the FCC’s 2015 order, the Bureau made clear it did not resolve the ongoing ATDS proceeding, affirming “[t]he details of the [FCC’s] interpretation of the autodialer definition remain pending in the wake of a 2018 decision of the U.S. Court of Appeals for the D.C. Circuit.”

[3] The Administrative Orders Review Act a/k/a the Hobbs Act, 28 U.S.C. § 2342 et seq., gives federal appellate courts exclusive jurisdiction to set aside or determine the validity of specified FCC final orders. Challenges are due in the D.C. Circuit or the federal circuit in which the petitioner resides within 60 days of the order’s entry. Before ACA Int’l, most federal district courts read the Hobbs Act to bar challenges to the FCC’s overbroad definition of ATDS in cases before them.

[4] TCPA case filings slowed in the face of the headwinds, dipping to a five-year low of 3,267 in 2019.

[5] The added language was later severed from the statute on constitutional grounds in Barr v. Am. Ass’n of Political Consultants, Inc., arguably undermining the Marks court’s reliance on this factor.

[6] In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, CC Docket No. 92-90, Report and Order, 7 FCC Rcd. 8,752, 8,776,  ¶ 47 (1992).

[7] In the Gadelhak opinion that Justice Gorsuch described as “excellent,” Justice Barrett explained:

“[I]t is worth noting the far-reaching consequences of Gadelhak’s ungrammatical interpretation: it would create liability for every text message sent from an iPhone. That is a sweeping restriction on private consumer conduct that is inconsistent with the statute’s narrower focus. Gadelhak argues that to qualify as an “automatic telephone dialing system” a device need only have the “capacity … to store … telephone numbers” and then to call or text them automatically. Every iPhone today has that capacity right out of the box. An iPhone of course can store telephone numbers; it can also send text messages automatically, for example by using the “Do Not Disturb While Driving” function. See How to Use Do Not Disturb While Driving, APPLE (Sept. 19, 2019), https://support.apple.com/en-us/HT208090 (“If someone sends you a message [while this feature is turned on], they receive an automatic reply letting them know that you’re driving.”). Every iPhone, then, has the necessary capacities to meet the statutory definition. That means that under Gadelhak’s interpretation, every call or text message sent from an iPhone without the prior express consent of the recipient could subject the sender to a $500 fine. See 47 U.S.C. § 227(b)(3)(B).

Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 467 (7th Cir. 2020) (emphasis added).

[8] Of possible importance, Justice Alito identified call forwarding as the “greatest problem” for the respondents.

[9] Facebook did not advance this argument. But Justice Gorsuch’s questioning indicated the fourth approach may be in play, which both Mr. Clement and Mr. Ellis agreed would have the same practical effect as Facebook’s reading.