Yesterday, the U.S. Supreme Court heard oral argument in Facebook v. Duguid?a significant case potentially limiting the reach of the Telephone Consumer Protection Act (?TCPA?). Facebook will resolve a circuit split over what qualifies as an automatic telephone dialing system (?ATDS?) under the TCPA.
The TCPA makes it unlawful to call a wireless phone using an ATDS, unless the called party has consented to receive such calls. The statute defines an 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.? 47 U.S.C.
statutory definition requires that the equipment use a random or sequential number generator to both ?store? and ?produce? telephone numbers.
Famous grammar expert and lawyer Bryan Garner argued the plaintiff?s position. He asserted the phrase ?using a random or sequential number generator? modifies only the verb ?to produce,? but not the verb ?to store? in the definition based on principles of grammar and statutory construction. Under this theory, the ATDS definition covers systems that store or produce numbers to be dialed automatically. Plaintiff also asserted that Facebook?s interpretation would destroy consumers? privacy, drastically limit the TCPA?s scope, and allow the deluge of unwanted robocalls to continue because the TCPA will exclude systems that automatically dial stored numbers but do not employ number generators to store them ? which encompasses most systems.
Facebook?s attorney, former Solicitor General Paul Clement, argued that under ordinary rules of grammar and canons of construction, the phrase ?using a random or sequential number generator? cannot be decoupled from the verb ?store? but instead modifies both ?store? and ?produce.? Facebook warned that Plaintiff?s interpretation converts a statute designed to target the specialized technologies of telemarketers that posed distinct risks of tying up emergency numbers or business lines into one that penalizes wrong numbers from nearly everyone who places a phone call.