In an amicus curiae brief filed with the U.S. Supreme Court in connection with the Court’s consideration of Facebook v. Duguid, et al., the U.S. Government requested the Court narrowly interpret the Telephone Consumer Protection Act’s definition of an automatic telephone dialing system (ATDS). Before the Court is the current circuit split between the Ninth, Second, and Sixth Circuit’s broad interpretation of an ATDS to include systems that can dial numbers from stored lists and the Seventh and Eleventh Circuit’s narrow interpretation that requires an ATDS to store or produce numbers using a random or sequential number generator.
Amongst other arguments, the Government explained that a narrow interpretation simply fits the definition’s grammatical construction: “As a matter of basic grammar, the phrase ‘using a random or sequential number generator’ in Section 227(a)(1)(A) is best read to modify both ‘store’ and ‘produce.’” Specifically, “[w]hen a modifying phrase appears at the end of a list, the phrase typically modifies each item within the list rather than only the last item.” This reading would require that an ATDS have the capacity to (1) store numbers using a random or sequential number generator, and/or (2) produce numbers using a random or sequential number generator.
Earlier in the case, the Government did not take a position on how the ATDS definition should be interpreted. In its brief in support of the Supreme Court granting certiorari filed on November 20, 2019, the Government specifically took “no position on the proper disposition” of the ATDS question due to the Government’s limited participation in the underlying case and the FCC’s “ongoing consideration” of the ATDS definition. This change in position could reflect an unstated shift in the FCC’s position or a divergence in position between the Department of Justice, who filed the brief, and the FCC.
Standing with the Government are a number of other amici, including the Professional Association for Customer Engagement and Noble Systems Corporation who jointly filed an amicus brief explaining that the ATDS definition as written in the TCPA and interpreted by the Seventh and Eleventh Circuits properly fits telephony systems patented at the time of the TCPA’s enactment and any expansion of the definition should be left to Congress – not the courts.
Oral Argument before the Supreme Court is scheduled for December 8, 2020. A decision is expected in early 2021 and could fundamentally reshape the legal landscape for legitimate callers.
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.