Warning: This is one of my boring legal analysis posts. It’s best appreciated by those who have already read my book Telephone Terrorism. Those who are looking for mindless amusement will have to wait until later this year for some new humor writing that is in the pipeline.
Yesterday, the U.S. Supreme Court decided Facebook v. Duguid. This case answered the question that has riveted America’s attention for the past three years: Does a limiting clause qualify all antecedents, or only the immediately preceding one? For Mr. Duguid, it settled an even more pressing issue. Did he win the prize behind Door #1: 0.0001% of Mark Zuckerberg’s wealth? Or did he win what is behind Door #2: Non-stop spam text messages that force him to eschew all modern technology and move to a remote cabin in Montana? Let’s just say it was a good day for hoodie-wearing Harvard dropouts and cabin salesmen, and a bad day for everyone else.
Some background: The Telephone Consumer Protection Act (TCPA) anti-robocall law bans most unsolicited autodialed calls and texts to cell phones, pagers, emergency lines, and hospital and nursing home patient rooms. However, the law’s definition of an automatic dialer says nothing about automatic dialing. Instead, it hinges on whether the phone equipment can use “a random or sequential number generator” to “store or produce telephone numbers to be called.” The clause includes language that may or may not be superfluous, and a comma that may or may not be misplaced. In one ruling from last year, Judge (now Justice) Amy Coney Barrett said that the autodialer definition “is enough to make a grammarian throw down her pen.”
Under a narrow reading of the TCPA, a disreputable telemarketer or debt collector can easily evade the autodialer ban by loading a database of phone numbers into a computer and then calling or texting them automatically. As long as the phone numbers aren’t generated randomly, and aren’t sequential (like 555-0001, 555-0002, ...), the equipment isn’t covered by the law. The caller can even use a “predictive dialer” that hangs up on people who answer the calls when an agent isn’t available. The only real no-no is that an artificial or prerecorded voice cannot be played. This interpretation leaves the door wide open to text spam, which is the problem that nearly caused poor Mr. Duguid to put his phone in the kitchen waste disposal.
The FCC and many courts have tried to close this loophole by interpreting the law more loosely. They have looked at what Congress was trying to achieve, and concluded that the narrow interpretation makes no sense. Under the narrow approach, a caller who autodials a bunch of random numbers will be liable for damages if some of them happen to be cell phones, emergency lines, hospital rooms, etc. But if the caller uses a database that contains these same restricted numbers, he doesn’t violate the law. That’s true even if he deliberately directs unsolicited calls to a list of nursing home patients, for example, or if he intentionally clogs cellular networks with spam. There’s not a snowball’s chance in Washington that the esteemed Senator Ernest F. Hollings and Representative Edward Markey intended this result when they drafted the TCPA back in 1991.
Under the loose interpretation favored by the FCC, any automatic dialing from a list of numbers is covered by the definition. There’s enough wiggle room in the grammar and punctuation for this to be a plausible reading of the law, but the Supreme Court’s ruling this week adopts the narrow interpretation. The FCC’s rule, which has been in place since George W. Bush’s first term, is no longer viable and a huge loophole has been opened in the TCPA. Or has it?
The facts of this case weren’t the ideal ones for the Supreme Court to use when deciding this issue. Duguid’s unwanted texts were individually sent by Facebook each time someone logged in to a particular account that was incorrectly linked to his cell phone. They continued even after Duguid complained several times. As rude as this was, Facebook wasn’t trolling through a list of numbers as a telemarketer would do. Even under the FCC’s interpretation of the TCPA, it isn’t 100% clear that these messages violated any rules other than those dictated by good manners and basic decency.
As a result of the atypical fact pattern, the Court doesn’t seem to have thought through all the ramifications of its decision. That’s made clear by Footnote 7 of Justice Sonia Sotomayor’s majority ruling. Here, she suggests that a computer that randomly picks a number from a list might still be prohibited by the law. This argument has been considered by other courts before, and has been almost uniformly rejected by judges who distinguish phone number selection from phone number generation. Now, it is back on the table. And if random selection of a phone number is legally risky, then sequential selection must be as well.
So what is the effect of the Court’s ruling? It clearly protects all the trillionaires in Silicon Valley whose web applications use texting for notifications and multi-factor authentication. But those who were following this case most closely were telemarketers, debt collectors, and political text messaging campaigns. For them, the Court either changed everything or nothing at all. That’s one of the perpetual stories of the TCPA: every court decision, FCC order, and new law that is supposed to resolve an ambiguity always opens up a whole new set of questions.