On Tuesday, December 8, the U.S. Supreme Court will hear oral arguments in the Duguid v. Facebook case to decide, once and for all, whether an automatic telephone dialing system (“ATDS”), as defined in the Telephone Consumer Protection Act (“TCPA”), requires random or sequential number generation. The case is poised to resolve a considerable circuit split, with the Third, Seventh, and Eleventh Circuits finding that telephony must include a random or sequential number generator to quality as an ATDS, while the Second, Sixth, and Ninth Circuits have concluded that telephony need only dial from a stored to list to satisfy the first prong of the ATDS definition.
Here are a few key issues to watch for when the Court hears oral argument:
- Justice Amy Coney Barrett. When Facebook filed its opening brief in September, it had no idea that it would be arguing its case to the author of one of the key cases upon which it relies. Justice Barrett, when she sat on the Seventh Circuit, authored the court’s decision rejecting Marks – the precise case at issue in Facebook – and determining that an ATDS requires random or sequential number generation. Justice Barrett will be very familiar with the arguments and will be able to press both petitioner and respondent on the weaknesses in their respective cases.
- The impact of textualism. Facebook’s position that the definition of an ATDS is governed by the plain language of the statute is tailor-made for those justices who consider themselves textualists. The impact of the late Justice Scalia likely will be felt throughout the day, as his canons of construction will be relied upon to parse a statute that, in the words of Justice Barrett “is enough to make a grammarian throw down her pen.”
- The changes in technology over the past 30 years. When Congress enacted the TCPA in 1991, it could not have foreseen the explosion of technology that was just around the corner. The ubiquity of cell phones likely will permeate the argument, as it did when the D.C. Circuit decided ACA International in 2018. Facebook likely will argue that the Ninth Circuit’s interpretation of an ATDS would, as the D.C. Circuit warned, turn virtually every American into “a TCPA-violator-in-waiting, if not a violator-in-fact.”
- TCPA fatigue. Facebook is another in a long list of TCPA cases the Court has heard in the past few years. Just last term, the Court decided Barr v. American Association of Political Consultants, holding that the government-backed debt exemption to the TCPA, enacted in 2015, was unconstitutional. Facebook represents only the latest in a line of TCPA disputes to make their way to the Court, which has noted Americans’ disdain for robocalls. Justice Kavanaugh noted in the Barr decision: “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.”