Facebook + robocalls= instant magic, at least in terms of readership on TCPA blogs.

My goodness has there been a lot of traffic on tcpaworld.com today, and the interest is totally understandable and appropriate. The stakes are HUGE and–as I’m about to explain– the outcome here is actually far from certain. Indeed, this is going to be a real nail biter as we await the outcome.

But let’s tee this thing up.

First, the issue: Does the Telephone Consumer Protection Act (“TCPA”) apply to all dialers with the capacity to dial automatically or just to pre-recorded voice calls?

Why does it matter?: The TCPA is the only federal statute governing calls to cell phones– if the TCPA does not apply to automated dialers then callers are free to blast cell phones without consent. On the other hand, if the TCPA applies to dialers with the capacity to call automatically then Americans have to have consent for everyone they call using a smartphone.

How is that even possible?: The TCPA governs calls made using an automated telephone dialing system (“ATDS”). Because the ATDS definition focuses on the capacity of an ATDS to dial automatically rather than the actual use of the automatic function in making a call– the Supreme Court is put to a difficult choice. It can either narrowly read the ATDS definition to apply only to systems with the “capacity” to dial randomly or sequentially– which will leave American cell phones open to a blitz of calls from so called “predictive dialers” that do not have that capacity– or it can broadly read the ATDS definition to apply to all dialers that can store from a list of numbers–which the smartphone in our pocket an ATDS subject to the TCPA.

So why not just apply the TCPA to everyone’s smartphone?: The TCPA has a private right of action enabling a called party to sue for $500.00 anytime a call is made without permission. If the Supreme Court applies the TCPA to smart phones then YOU would be liable for $500.00 every time you dial a wrong number or call someone without EXPRESS consent.

What are the parties’ positions?: Facebook–yes that Facebook– argues that the statute’s ATDS definition plainly applies only to dialers that call randomly. In its view Congress intended a very narrow ATDS definition because a broad TCPA would have violated the First Amendment. (And it does but… then the First Amendment died so, now it doesn’t.) Plaintiff, on the other hand, argues that the purpose of the statute was to protect Americans from unwanted calls so the TCPA should be read broadly in accordance with that goal. In his view the problematic language in the TCPA regarding “random or sequential number generators” really only applies to a piece of the definition– an argument strengthened by the fact there is no way to “store” numbers using a random or sequential number generator.

So who is right? Facebook–if you look at the statute through the lens of 1991. But a lot has changed since then. Most importantly–the First Amendment just doesn’t matter as much today as it used to. Whereas Congress was right that banning all calls to cell phones using an autodialer would ABSOLUTELY have violated the First Amendment in 1991, it doesn’t so much anymore because Freedom Schreedom–we hate robocalls. Facebook also wins if you look at the problem through the lens of who is impacted by a broad TCPA reading– Congress absolutely did not intend to convert millions of Americans into TCPA-violators in waiting (a holding already handed down by the D.C. Circuit Court of Appeals in analyzing this exact language.) But if the focus is on protecting American’s cell phones from unwanted calls then Plaintiff plainly has the stronger argument–and his linguistic points also carry significant weight.

How Did the Justices Respond to the Oral Argument? 

This was a wide ranging oral argument, with questions sometimes seemingly coming out of left field. The Justices at times seemed to struggle with both the grammatical arguments being presented, as well as with the new-fangled technology at issue. Everyone seemed out of their depths at times–including the advocates themselves.

There’s lots to unpackage here. If you haven’t done so already be sure to take a look at my “Live Feed” from this morning and–if there’s still time–try to tune in to our webinar breaking down what we learned.

For now, however, here are the top 10 things I took away from the argument:

10. Can A Statute be Deemed Obsolete by the Supreme Court? We May Be About to Find Out.

Over and over again the various Justices suggested the TCPA was a poor fit for modern technologies. This is a true square peg round hole situation and trying to interpret the TCPA’s obsolete language in a manner that covers modern technology just seemed more than the Justices cared to do.

At one point Justice Thomas was rather directly suggesting that the statute might be obsolete and the Court should not waste resources interpreting it out of “futility.” Later Justice Grousch picked up this line of questioning–pointing out that the Supremes had never claimed the authority to deem a statute obsolete, but the TCPA certainly seemed to be a candidate.

So what does it even mean to have a statute deemed obsolete? Well since no court has ever directly held a statute obsolete no one really knows. Presumably, however, it would render the statute unenforceable– at least in some contexts. Perhaps this is a corollary doctrine to the vid for vagueness doctrine under the due process clause. Will be interesting to see if the Court does anything with it.

9. What is a Robocall Anyway? The Supreme Court Justices Spar with Advocates on a Word that Isn’t Even in the Statute

It was interesting to watch the Justices and advocates discuss the meaning of the word “robocall”–it isn’t even in the statute.

So why does it matter?

Well in a bit of judicial grandstanding, Justice Kavanaugh’s plurality opinion in AAPC pronounced that the Supreme Court was keeping America safe from robocalls in upholding the TCPA from a massive First Amendment challenge in that case. (Such a bad ruling in my opinion.)

So Plaintiff’s counsel handed that right back to the Supreme Court and reminded it that just a few months ago it had pledged to keep Americans safe from robocalls, which– in plaintiff’s view–includes automated calls.

The Justices–particularly Kavanaugh and Roberts who joined the plurality in AAPC–did not seem pleased with that characterization and tried to position robocalls to include only pre-recorded calls. Quite the retreat.

8. The Rules of Statutory Construction May Not be As Well Settled As We Thought

Believe it or not, lawyers like rules. We’re all a bunch of little rule followers. The magic is in applying the rules in the way that best helps your client.

But listening to the Supreme Court argument today I felt this sinking feeling in my stomach– like maybe the rules don’t matter that much after all. Specifically, the rules of statutory construction. Over and over and over again we learned in law school–and in day to day practice–that Courts are supposed to apply certain very specific (sometime arcane) rules to discern the meaning intended by Congress.

These rules are critical (I thought) because the alternative, as Facebook’s counsel boldly pronounced at oral argument– is “madness.” Leaving courts free to re-write statutes using whatever criteria they think best.

Over and over, however, it was suggested that these rules might not apply monolithically after all.  As Chief Justice Roberts asked right out of the gate:  “[Your opponent argues we should] look to the sense of the passage and not the syntax…. as a general matter he’s right isn’t he?”

7. Privacy is a Double-Edged Sword

One of the more interesting components of Facebook’s argument was a bit of legal jujitsu.

Duguid counsel pressed that American privacy can only be protected by a broad reading of the TCPA. Rather than take that issue on or dispute it, Facebook did exactly the opposite– it argued that Congress didn’t really care about privacy in enacting the TCPA to begin with.

In Facebook’s reasoning, if Congress wanted to defend American’s privacy interest it would have protected “the homefront.” (Yes the term “homefront” was actually used.) But the TCPA does not apply to ATDS calls to residential landlines– it never has. So if privacy mattered then Congress inexplicably left an “elephant hole” next to a “mouse hole.”

This was a pretty bice tactic that took a lot of the sting away from Plaintiff’s “privacy” argument– but it is also a bit of sleight of hand. Just because Congress didn’t protect residential privacy doesn’t mean it didn’t intend to protect the privacy of cellular phone subscribers. But when you factor in the fact that residential phone users are generally said to have MORE privacy protections than cellular subsribers it does start to become a bit strange that Congress would intentionally legislate backward. (Again the answer likely lies in First Amendment law, but that doesn’t seem to matter.) Speaking of which…

6. The First Amendment is Literally Dead in this Country

We just witnessed something so remarkable and sad and insane (at least to me.)

An entire oral argument before the Supreme Court in which expanding a federal statute to impose criminal and civil penalties on users of smartphone technologies is being seriously considered– and ZERO mention of the First Amendment implications of such a ruling were made.

Zero.

ZERO!

I mean, how in the world does one consider expanding a federal statute like the TCPA–which plainly regulates speech–to cover every smartphone in the nation (and to therefore regulate the speech of every American) without at least discussing the First Amendment prohibition on federal statutes that regulate speech?

The only time the First Amendment was even mentioned was when Facebook’s counsel explain to the Court that the reason Congress didn’t originally draft a broad TCPA was due to First Amendment concerns. And then the issue was dropped. It was never unpackaged or discussed.

Just dropped like a dead sardine.

5. The TCPA is Likely a Pawn in a Larger Game–Again. This Time the Battle is Over Textualism

The TCPA, it seems, is often a pawn in a larger game.

As one of the most often sued under statutes in the federal arsenal courts get to see a lot of TCPA cases. And they use the opportunity to position precedent for larger battles–after all, does the Supreme Court really care about who is getting robocalls given the state of America in 2020?

One of the big meta-battles in legal circles is how and whether courts may “re-write” statutes to accomplish the supposed purpose intended by Congress, versus needed to stay very close to the actual language. “Textualism” as it is called, is particularly important in Constitutional review– “textualists” tend to read the Constitution narrowly to give Americans less freedom (and the government more power to regulate). This is important, say, if you want to overturn case law permitting stuff that you think ought to be illegal.

When you hear that the Supreme Court now skews “conservative” what that mostly means is that this Supreme Court is made up of “textualists” who seek, above all else, to faithfully interpret the text of statutes and the constitution in the way intended by the drafters of the documents at the time they were drafted. There is a fundamental philosophical divide between textualists and other judges who believe that reading law in light of current circumstances is just fine.

The battle between the “at the timers” (textualists) and the “now matters” justices was on plain display in the questioning. Over and over questions about what Congress was intending in 1991 were asked. Thus, while it may seem weird in a case involving a high-technology company like Facebook, much of the discussion  centered around obsolete technologies like call forwarding and auto re-dial: functionalities that were available to Congress at the time of drafting that might inform a reader today about what Congress meant back then.

It will be fascinating to see how this textualist battle plays (arguably it could go both way) out but there is one thing for sure–the conservative wing of the court is not going to create precedent in Facebook that might damage its approach in other “bigger” matters of interpretation.

4. This case may be more about “capacity” than anything else

One of the biggest moments came late in the argument when Gorsuch had Plaintiff’s counsel Garner on the ropes over the TCPA’s focus on “capacity” in the ATDS definition.

The definition– as Gorsuch urged–does not require the actual use of automated functionality–so how can the Court avoid criminalizing ordinary phone calls? Garner tried to push back but had nowhere to go and advocated for an application of the statute to only automated calls– but that is not what the statutory definition says and Gorsuch pummeled him for trying to change the language.

But if the Supremes are really caught up on “capacity” –i.e. that the use of automated functionalities doesn’t matter– then that may be check mate for Facebook. To use Garner’s own example–it would be equivalent to criminalizing the ordinary use of ropes and kitchen knives, because they are implements with the capacity to serve as deadly weapons.

Stated simply: the ruling in this case might begin with the Supreme Court focusing on the statute’s use off the word “capacity” and backing into a functionality definition from there.

3.  Human Intervention is in the Eye of the Beholder– Which Also Helps Facebook

Closely related to the “capacity” issue is the doctrine of human intervention. Plaintiff’s argument against application of the TCPA to smartphones is that the statute does not apply to dialers that operate with human intervention.

As already explained, Gorsch tore Garner apart on this point because that’s not what the statute says.

But even more problematically– how does one define human intervention? Justice after justice peppered Garner on this point–including a nice zinger by new Justice Barret on the use of an auto-reply feature. There was simply no good answer available.

In the end the ephemeral boundaries of “human intervention” may be the Plaintiff’s bar’s undoing.

2. There May be a Middle Ground After All

One of the most exciting parts of the Facebook appeal for legal nerds like me is that there seemed to be no middle ground– the Supreme Court had to adopt one of two imperfect choices. Either it had to obliterate the TCPA’s ATDS definition (probably the right thing to do even thought the consequences aren’t the best) or it had to re-write the statute completely (not what courts are supposed to do and, as explained above, not what this court wants to do at all.) There just didn’t seem to be any other path forward.

Leave it to Justice Thomas to offer a middle ground.

What if the TCPA just doesn’t apply to texts? The “calls” at issue in Facebook weren’t “calls” at all– they were text messages. The TCPA doesn’t mention text messages. Indeed the first ever text message wasn’t sent until the year after the TCPA was passed.

While the entire TCPAWorld might groan at the idea of going all the way to the Supreme Court on the critical ATDS definition and walking away empty handed, that might be precisely what happens. If SCOTUS rules that texts are not calls or–worse yet–punts on the issue and asks the Ninth Circuit to reconsider it, we may have come a long way for a small ruling.

Then again, text message platforms will be happy.

1. This Thing Is a Closer Call than Many Expected

Coming into oral argument I gave Facebook an 85% chance of success. I think Facebook still has the better chance here–mostly because of the textualist bend of the court. But listening in today I think we’re closer to 60-40.

Garner was the better of the advocates in the courtroom today– sorry, not sorry– and he performed admirably in the face of tough questions. In the end I do not think it will be enough to carry the plaintiff’s bar across the finish line but it was a commendable effort and one that made this thing a lot closer than it looked on paper.

Final take away: The TCPA is an awful little statute. Here’s hoping the Supreme Court does away with it.