Argument analysis: Justices at odds over federal robocall ban in the face of technological change
on Dec 10, 2020 at 6:26 pm
On Tuesday, for the second time this year, the Supreme Court heard oral argument on the federal law that bans robocalls to cellphones. The question this time, in Facebook v. Duguid, is whether the Telephone Consumer Protection Act’s ban on robocalling or robotexting cellphones using an “automatic telephone dialing system” includes using a device that can store and automatically dial telephone numbers without using a “random or sequential number generator.”
At argument, the justices principally appeared frustrated by the statute, if for different reasons. Several justices suggested that the TCPA is out of step with current technology. They seemed to diverge, however, on how that should cut in interpreting the statute, or whether changes in technology or the consequences of their ruling should play a role in their consideration at all.
None of the justices seemed to relish picking between the two interpretations ostensibly before them: one that might create an avalanche of targeted robocalls, or another that might render ordinary smartphone usage a violation of the TCPA. The justices all appeared to agree on one thing, however: They wished the ball was in Congress’ court (or maybe the Federal Communications Commission’s), instead of theirs.
On the upside for court watchers, the argument involved colorful hypotheticals, and we gained some insight into both how the justices use technology — Justice Sonia Sotomayor sends email blasts, and Justice Clarence Thomas remembers when cellphones were the size of a loaf of bread! — and how they think about the intersection of technological change and statutory meaning.
Enacted in 1991, the TCPA regulates a range of telemarketing practices. The part of the statute at issue in Duguid bans “using any automatic telephone dialing system or an artificial or prerecorded voice” — both of which the Federal Communications Commission considers “robocalls” — to call or text cellphones without consent. The TCPA defines an automatic telephone dialing system, or ATDS, as “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 numbers.”
Former Solicitor General Paul Clement represented Facebook. Argument was divided with the federal government, which filed in support of the company.
Clement’s opening statement, like the social media company’s briefs, centered on grammar. He argued that usual rules of grammar and statutory construction require the phrase “using a random or sequential number generator” to apply to both verbs, “store” and “produce.” Congress in the TCPA prohibited using prerecorded voices to call both cellphones and residential numbers, he noted, but only banned using an ATDS to call cellphones, hospitals and other lines that were particularly vulnerable to abuse by random and sequential number generators. “[I]f Congress were really aiming at annoying calls from devices that could store and dial numbers,” Clement emphasized, “its failure to protect the home front would be inexplicable.”
Chief Justice John Roberts opened with a line of questioning that would be a central theme of the argument: Noah Duguid, who sued Facebook out of frustration from repeated automated texts he received to his cellphone from the social network, argues that “we ought to look to the sense of the passage and not to rules of syntax. … As a general matter, he’s right, isn’t he? I mean, the drafters here weren’t following the rule of reddendo singula singulis or diagramming these sentences.” Why should we focus on syntax? Clement’s response: “Because the other way lies madness.” Congress targeted a specific problem in 1991, he maintained, and the court should not “repurpose the statutory prohibition to address more modern ills.”
Justice Samuel Alito pressed a similar line. People don’t look at grammar treatises, he said; they ask what makes sense. This leads to a key question: “Does it make any sense to speak about storing a list of telephone numbers using a random or sequential number generator?” If not, Alito stated, “I think you have a problem.” Justice Elena Kagan pressed a similar question. Consider a law that says, “It is illegal to stab or shoot another person using a firearm.” “What I want to know is,” asked Kagan, “would I be covered if I stabbed somebody with a knife?”
In response, Clement pressed the idea, to which he returned throughout the argument, that it’s not that the number generator has to literally do the storing (or for that matter, the dialing), but instead that “you’re using the number generator … as part of the process of storing telephone numbers to be called or part of the process of dialing telephone numbers to be called.” Congress, he said, was trying to prohibit the use of number generators for either immediate dialing, captured by the word “produce,” or later dialing, captured by the word “store.” That, he said, makes storing with a generator different than stabbing someone with a firearm (other than a bayonet).
The chief opened a second general theme about practical consequences. Duguid argues that if his interpretation is rejected, a torrent of targeted robocalls to cellphones will be unleashed. Is that something, Roberts inquired, that the court should consider at all? Clement responded that it is Congress’ job to address problems in an ongoing way. He also pressed his own parade of horribles: Under Duguid’s interpretation, every smartphone would qualify as an ATDS and every smartphone user might be subject to TCPA liability. But, Sotomayor wondered, perhaps that problem stems less from Duguid’s interpretation than from the TCPA, which also regulates calls to pagers. If Congress targeted all automatic calls, and now every smartphone can make them, Sotomayor asked, isn’t it Congress’ job “to update the TCPA to bring it in line with the times”?
Thomas and Justice Neil Gorsuch each asked about alternate ways to interpret the statute beyond the two options presented by the parties. Thomas asked why text messages should be considered “calls” at all. Clement welcomed the possibility that the justices would give Facebook a win by cabining the statute to voice calls. Referencing an opinion by Justice Amy Coney Barrett from her time on the U.S. Court of Appeals for the 7th Circuit, Gorsuch wondered whether “using a random or sequential number generator” might modify “numbers called” instead of the verbs, despite the comma between them. Would there be a practical difference between adopting that interpretation and the one Facebook advances? Clement did not think there would be, but offered that “calling” and “storing” numbers using a random or sequential number generator ought to be viewed as equally sensible interpretations.
The federal government was represented by Jonathan Ellis from the solicitor general’s office. Ellis took largely the same position as Facebook and was met by similar questions. Ellis attacked Duguid’s interpretation as “anti-grammatical” and attempted to forestall concerns about opening the floodgates to robocalls by emphasizing that “regardless of how the Court resolves this case, the TCPA will continue to broadly prohibit robocalls to cellphones and residential lines.”
Ellis first tussled with Roberts over whether the case “begins and ends with the text” and how much room the FCC might have to interpret the statute contrary to the government’s interpretation. Barrett followed up on that question, asking whether courts’ usual deference to agency interpretations of ambiguous statutes would even apply to the FCC’s reading of the law. (The FCC is currently considering how to construe the very same language and has previously read the statute as Duguid argues it should be.) Ellis was noncommittal, saying only that the statute doesn’t give the FCC much room to adopt a different interpretation.
Alito again inquired if the government must show that there was technology in 1991 that could store numbers using a generator. Ellis responded no, and added that it is not a requirement that both verbs, “store” and “produce,” do independent work; Congress might have been using a belt-and-suspenders approach.
Justice Brett Kavanaugh questioned Ellis, as he had Clement, on why Congress would have treated prerecorded calls differently from live calls placed with an ATDS. What was the real-world problem Congress was getting at? Congress was concerned, Ellis said, that live ATDS calls could cause problems to the sort of sensitive lines in the provision, such as 911 lines and cellphones whose owner would be charged for the call.
Bryan Garner, a textualist scholar who published a book on statutory and constitutional interpretation with the late Justice Antonin Scalia, represented Duguid. It was his first Supreme Court argument.
“Any method of interpretation — textualism, purposivism, consequentialism — favors affirmance here,” he began. But as a matter of text, he said, the question is ordinary meaning. “No linguistic rule should lead us to conclude” that “to maintain or acquire lands to be developed using eminent domain” means “we must maintain lands using eminent domain.” The same principles apply here. On Facebook’s reading, he argued, both “store” and “or” are surplusage. Garner also offered his own parade of horribles: “Facebook would read the statute into oblivion because robocallers today use stored phone numbers to annoy people just as they often did in 1991.” “Like a viper,” this interpretation would “kill the statute and privacy.”
Garner had a somewhat academic colloquy with the justices, with more than one asking for his expert or personal view. The chief began by asking, if ordinary speakers – not canons of interpretation – should be the basis of statutory interpretation, why don’t we just poll 100 ordinary people? Garner answered that a poll might be useful, but that native speakers understand without canons. For example, “cookbooks are full of statements” such as “using a spatula, lift the omelet and tilt the pan.” Nobody stops to say, “do I have to use the spatula to lift the pan?”
Thomas observed, as he had with Ellis, that technology has changed immensely from 1991, when cellphones were the size of a loaf of bread and caller-ID was cutting edge. “Don’t you think it’s rather odd” or even futile to apply a statute that’s “almost anachronistic” to the current moment? he asked. “The average American is very well familiar with robocalls,” Garner responded, and “actually doesn’t care whether they were randomly generated” or not. Thomas then suggested that, in the old days, numbers were randomly generated because that’s all the technology could do. Garner responded that in 1991, “there were lots of stored numbers,” and in fact “lists and databases of known numbers came up over 200 times, [while] generators came up only four times, in the whole legislative history.”
Justice Stephen Breyer noted that normally a dynamic interpretation is used to expand the statute – for instance, in an environmental statute, to protect a certain species of fox as endangered when it wasn’t thought to be when the statute was written. But here, he said, it looks as if dynamic interpretation would constrict the statute. Garner responded, “I’m a proponent of the fixed-meaning canon, but … given what has happened in the last 29 years, Congress looks prescient having said ‘store’ and ‘or’ before ‘produce.’”
Alito asked whether call forwarding, available in 1991, qualified as an ATDS. Garner said no, and neither would normal uses of cellphones today — because both involve human intervention, not automatic dialing. He pointed out that the FCC and two federal appeals courts have found that human intervention excludes calls from the definition of ATDS, and that direct human placement of a call rather than automatic dialing differentiates human intervention from ATDS.
Sotomayor returned to the question of consequences. If the court rules for Duguid, she asked, “the logical consequence is that every cellphone owner would be subject to the harsh” penalties of the TCPA. She asked for a reason Congress would have intended that. Garner’s response was that ordinary Americans don’t use smartphones for “automated mass dialing or blitz messaging.” But “I do e-mail blasts with friends,” Sotomayor noted, and there is all sort of automated technology available from Zoom to FaceTime. Won’t the court’s ruling affect the development of technology? The court could disclaim application to smartphones, Garner offered, but in most cases, as with friends, there is also consent.
Kagan asked Garner if he would concede that the statute was “ungrammatical,” which he refused to do. “It’s an unusual sentence … perhaps a little awkward,” he said. It “shows the infinite variety of the kind of sentences that English speakers can devise.”
Gorsuch pressed Garner on where the idea of automaticity can be found in the statute, and suggested that Garner was “putting a lot of words” into the statute. “I don’t think so,” Garner responded. “I’m looking at the definition itself. The term ‘ATDS’ means equipment that has the capacity to dial such numbers. It’s the equipment that dials. And the word ‘automatic’ is the word being defined.”
Barrett followed up about the need for human intervention. What about an autoreply function? I can set my iPhone, Barrett noted, to send a do not disturb message if I am driving or sleeping, and set it up to send to all of my contacts. “Would that be enough, one step removed,” to “count as human intervention?” Garner answered no, trying to blunt his response with the point that there would likely be consent. Barrett followed up, inquiring about synesis — the concept of focusing on what would make sense to an ordinary speaker, on which Duguid relies. Is that a legal concept? Barrett asked. Is it one that Garner, presumably as a textualist, would endorse? Garner’s response: “I don’t endorse it broadly. And yet it does recognize that we must look at the sense of the words to understand the sentence.”
Garner closed, noting that “on Facebook’s reading, it would have been possible even in 1991 to download the entire phone book and auto dial every number with impunity, thousands per minute, as long as you stored the numbers on a floppy disk or hard drive,” rather than a number generator.
In his rebuttal, Clement noted that the awkwardness of reading “store” with “generator” would matter if one of two things were true: either if it were impossible to read them together, or if doing so would render words in the statute superfluous. But it’s not impossible, he asserted, and Duguid’s reading has a bigger superfluity issue because it reads the generator clause out of the statute. The notion of human intervention that Duguid advances, Clement countered, is not in the statute and doesn’t solve the problem in any event: “If I tell Siri to dial a number from one of my stored contacts, that’s about as automatic as dialing gets.”
The court is expected to issue its opinion by the end of June. Regardless of outcome, the ruling is likely to have significant implications for the future of marketing and cellphone spam, and perhaps for broader questions of statutory interpretation in the face of technological change.