The Plaintiff in Facebook, Inc. v. Duguid—the case that promises to resolve the growing circuit split over the TCPA’s definition of an ATDS—has filed his merits brief in the Supreme Court.

Recall that the TCPA defines an ATDS as equipment that 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. § 227(a)(1).  With help from noted grammarian Bryan Garner, who signed the brief as his new co-counsel, Duguid argues that the language of the statute and the canons of construction make clear that the adverbial phrase “using a random or sequential number generator” modifies the verb “to produce” but not the verb “to store.”  For example, he argues that the “distributive-phrasing canon” requires that modifying phrases apply only to words “which, by context, they seem most properly to relate.”  Brief at 20.  Because the verb “to store” does not in his view relate to the phrase “using a random or sequential number generator,” he argues that the Court need not interpret the phrase as modifying “to store.”  Id.; see also id. at 15 (calling this outcome a “semantic mismatch between a modifier and a verb”).  He similarly argues that the “last-antecedent canon”—which provides that a modifying phrase “should ordinarily be read as modifying only the [verb] that it immediately follows”—counsels in favor of construing the adverbial phrase as modifying only the adjacent verb “to produce” and not the other verb “to store.”  Id. at 20-21.

Duguid’s brief also makes several arguments that are rooted in his take on the legislative intent behind the TCPA.  As he sees it, Congress wanted to curtail unwanted telemarketing calls, and therefore would not have wanted to “make a prohibition on automated calls to stored numbers hinge on whether they were stored using a number generator or another means.”  Id. at 32.  Facebook’s narrower reading of the statute, he argues, would cause the TCPA to “destroy itself” by allowing businesses to dial numbers from stored lists.  Id. at 33.  Relatedly, Duguid argues that construing the TCPA as prohibiting only the “senescent technology of random or sequential number generation” would render it toothless against modern technologies that rely on precision data and stored lists.  Id. at 41.  Finally, Duguid contends that, contrary to Facebook’s position, an expansive ATDS definition would not necessarily bring all smartphones within the scope of the statute because placing a call via smartphone requires the user to press at least one button, which he suggests is enough human intervention to take calls outside the scope of the statute.  Id. at 45.

Facebook, Inc. v. Duguid is set for oral argument on December 8, 2020.  We will be monitoring this matter closely and will report on further developments as they arise.