The U.S. Supreme Court scheduled oral arguments on December 8, 2020 in a crucial case supported by the Insights Association to clarify the definition of an autodialer in the Telephone Consumer Protection Act (TCPA).

IA recently joined 10 other business groups in an amicus brief in the case, Facebook v. Duguid.

A bunch of other parties filed briefs supporting Facebook's case as well. For example:

  • The Washington Legal Foundation argued that, "Courts have opined that the TCPA is too intricate, too narrow, or too outdated. This they are entitled to do. What they may not do, however, is treat these qualms as a reason to edit the statute. ... The temptation, in some TCPA cases, has been to replace the detailed and balanced law Congress passed with an allpurpose anti-robocall law. ... This case is one example."
  • PACE and Noble Systems suggested that, "An expansive interpretation follows from a presumption that the statutory definition is ambiguous, but this is predicated on a limited understanding of technical terms in the statute. The TCPA’s statutory definition of an ATDS is not ambiguous when the plain language is read in context with, and an understanding of, the referenced technology."
  • The TCPA’s auto-dialer prohibition was effective, and devices of that sort became obsolete," Home Depot said, but "instead of accepting that victory," the Federal Communications Commission (FCC) "explored whether the statute could be stretched to cover new and different technology. That reach has now given cover to thousands of lawsuits against companies that were not using random or sequential dialing, many of which were not even telemarketing at all." The Ninth Circuit, the company's amicus brief explained, "stretched" the TCPA, which "was originally meant to bring a swift end to a specific and particularly unpleasant practice... into a broad-spectrum law requiring prior consent before calling cell phones."
  • Salesforce accused the Ninth Circuit Court of rewriting "the statutory text to eliminate the requirement that an automatic telephone dialing system use a random or sequential number generator and instead applied the TCPA’s restrictions to any device or system that stores and dials telephone numbers. To achieve that result, the Ninth Circuit ignored the plain text of the statute, basic rules of grammar, and the rule that statutes must be construed to avoid absurd results."

Response to briefs filed by Facebook, the U.S. government, IA, and others, are due by October 16, and amicus filings in support of Duguid must be in by October 23.

The Insights Association will keep our members apprised of this case.