We’ve been masking the Phone Shopper Safety Act (TCPA) extensively on this weblog, and hashish TCPA litigation particularly.

Final week, the Supreme Court docket heard oral arguments in Fb, Inc. v. Duguid – maybe essentially the most impactful case within the TCPA house right now. I first wrote about Fb on this post, the place I defined that the Supreme Court docket needed to determine whether or not the definition of an ATDS “encompasses any gadget that may ‘retailer’ and ‘robotically dial’ phone numbers, even when the gadget doesn’t ‘us[e] a random or sequential quantity generator.’” The significance of Fb is that this: in conditions the place the plaintiff solely asserts that the defendant made telephone calls or despatched texts from lists of buyer knowledge, quite than by means of randomly generated numbers, a ruling for Fb might utterly intestine the worth of these claims.

Counsel for Fb argued Duguid’s interpretation was so broad it will cowl any name or message made by cell phones and created “a statute of unimaginable breadth.” He argued the ban solely applies to (now largely out of date and barely used) dialing methods that generate random or sequential telephone numbers. Different notable companies resembling CVS, Residence Depot, Quicken Loans, and United HealthCare all submitted briefs supporting Fb’s place.

Counsel for Duguid argued Congress enacted the TCPA to reply to a flood of shopper complaints and meant to cowl any use of saved numbers to make computerized calls. He argued Fb’s proposed interpretation “would learn the [TCPA] into oblivion.”

Total, each justice made no less than one comment that steered they have been annoyed and/or fighting making sense of the ambiguous statute that was enacted lengthy earlier than Fb existed, or cell phones have been broadly utilized. Finally, a number of justices appeared to counsel they agreed with Fb and thought the TCPA didn’t apply to calls or texts despatched from lists of buyer knowledge. Notably:

  • Justice Stephen Breyer advised Fb’s counsel he had “a fairly sturdy case on the results and functions” of the regulation.
  • Justice Clarence Thomas requested why “textual content messages” have been even lined by the TCPA, provided that the statute’s language solely regulates calls and later known as the statute an “sick match” for present know-how. He additionally requested, “Don’t you assume it’s quite odd that we’re making use of a statute that’s nearly anachronistic if not vestigial to a contemporary know-how like Fb and on the spot messaging, and so forth.?”
  • Justice Sonia Sotomayor commented Duguid’s interpretation would put mobile-phone customers vulnerable to being sued: “If we rule your manner, the logical consequence is that each cellphone proprietor can be topic to the cruel prison and civil penalties of the TCPA.” She requested, “Might you give me a cause, aside from that it hasn’t occurred but, for why Congress would have meant that?” She was unimpressed with Duguid’s counsel’s response.
  • Justice Elena Kagan caught to arguing the grammar of the statute with Duguid’s counsel (who actually wrote the e book on statutory interpretation with the late Justice Antonin Scalia), however made clear she was not agreeing along with his interpretation. She requested him to acknowledge that the studying he advocated for “is in actual fact ungrammatical.”
  • Justice Amy Coney Barrett particularly requested concerning the call-forwarding perform and different automated capabilities that fashionable cellphones are geared up with. Regardless of a considerably unproductive dialogue, we have already got a good suggestion of what she is pondering, which I wrote about on this post.

A lot of the listening to centered on very technical, very dry arguments concerning the grammar of the statute, however the Supreme Court docket did take care to debate the sensible implications of their ruling. Chief Justice Roberts particularly famous the “sense” of the supply was extra necessary than its syntax. The Court docket is predicted to concern its ruling by Spring 2021 – and like many different customers and companies, we’ll be eagerly ready to learn it and report again.