Supreme Court Hears Oral Argument in TCPA Case Arising From Account Verification Text

The Supreme Court heard oral arguments Tuesday in the case Facebook, Inc. v. Duguid in which the Court considered the constitutionality of the Telephone Consumer Protection Act of 1991 (TCPA), which prohibits calls made using an automatic telephone dialing system (ATDS) without prior consent.

The two questions before the Court are: “Whether the TCPA’s prohibition on calls made using an ATDS is an unconstitutional restriction of speech, and if so whether the proper remedy is to broaden the prohibition to abridge more speech” and “Whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.”

Respondent Noah Duguid sued Facebook claiming that the tech giant violated the TCPA by using an ATDS to text his cell phone without his consent. Allegedly, Facebook accidentally sent respondent Duguid multiple messages as part of its policy to automatically send a computer-generated message to a user’s phone when their Facebook account is accessed from an unrecognized device. Duguid purportedly contacted Facebook numerous times to stop receiving these messages, but continued to receive them for many months afterwards.

Duguid stated that the messages were sent automatically, with no human intervention, so regardless of the use of random or sequential number generation, this conduct is covered by the TCPA. However, Facebook argued that the “random and sequential number generator” requirement means it has not violated said law.

In the oral argument, Paul Clement, counsel for petitioner Facebook, argued “under well-established rules of grammar and statutory construction, the entire phrase ‘telephone numbers to be called using a random or sequential number generator’ applies to both disjunctive verbs, ‘store’ or ‘produce.’ The contrary reading covers any device that can store and dial numbers even without the use of a random or sequential number generator. That reading creates a statute of impossible breadth and a fundamental mismatch between the ATDS definition and the targeted ATDS prohibitions.”

Chief Justice John Roberts took issue with Facebook’s focus on syntax instead of the “sense of the passage;” in response, Clement asserted that the respondent’s reasoning invites “madness,” adding that “(the Department of ) Commerce targeted a very specific problem in this provision” to argue that the statute should be narrowly interpreted.

Meanwhile, Justice Clarence Thomas questioned if text messages should be considered calls under the TCPA and Justice Samuel Alito seemed to discredit the syntax argument, noting that the structure of the statutory phrase “is fairly common.” Additionally, Justice Sonia Sotomayor noted that Facebook’s argument is likely a reflection that the TCPA should be updated by Congress, pointing to the fact that smartphones did not exist when it was enacted and the Act still refers to pagers.

Jonathan Ellis, arguing for the government in support of Facebook, claimed that the Supreme Court must examine the sense of the passage. “Regardless of how the Court resolves this case, the TCPA will continue to broadly prohibit robocalls to cell phones and residential lines. The fact that the 1991 ATDS definition describes a universe of devices that are no longer in widespread use provides no basis for this Court to adopt anything other than the most natural reading of the statutory text.”

Justice Thomas asked Ellis “At what point do we say this statute is an ill fit for current technology?” In response, Ellis said “the best reading of the ATDS definition, as you suggested, doesn’t apply to a great deal of technology that’s still in use today. I think that’s actually evidence of the TCPA’s success and not a reason to update the statute,” but added that any updating should be left to Congress.

Bryan A. Garner, arguing on behalf of Duguid, asserted that “Congressional purpose is overwhelmingly clear. It’s privacy.”Garner contended that “Facebook would read the statute into oblivion because robocallers today used stored numbers to annoy people just as they often did in 1991”; he also pointed to Barr v. American Association of Political Consultants, a case in which the Supreme Court “repeatedly said that the Act prohibits almost all unsolicited robocalls.”

Justice Sotomayor noted that if the Supreme Court rules in favor of the respondent, “the logical consequence is that every cell phone owner would be subject to the harsh criminal and civil penalties of the TCPA.” Garner claimed that “the difference between text messaging groups and friends is that everybody has consented…the difficulty is when people’s privacy is being invaded.” 

Justice Elena Kagan considered the syntax of the statute and the respondent’s proposed reading, which she said favors Facebook’s position. Justice Gorsuch also pointed to the awkward grammar of the sentence. Garner responded, “the point of synesis is simply that we must look at the semantic content of the words. We don’t take the words as just fungible morphemes and say once you hit the comma, everything before it gets modified.”

Facebook is represented by Kirkland & Ellis as well as Latham & Watkins. Duguid is represented by Lemberg Law LLC, Garner & Garner LLP, and Public Citizen Litigation Group