Last Friday, Facebook and the United States government filed briefs in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the growing circuit split over the interpretation of the definition of an ATDS. The Supreme Court granted certiorari in July, agreeing to review a Ninth Circuit decision that had reversed the dismissal of claims targeting Facebook’s login text alerts.
As our regular readers know all too well, 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). Facebook and the government’s briefs both argue that the text of the TCPA makes clear that, to qualify as an ATDS subject to the TCPA, equipment must do more than store numbers to be dialed at a later point. “There is no basis in grammar or canons of construction,” Facebook argues, “for applying the adverbial phrase ‘using a random or sequential number generator’ to modify only the verb ‘to produce,’ and not the preceding verb, ‘to store.’” Facebook Brief at 20; see also Government’s Brief at 10. Both briefs also argue that the Ninth Circuit incorrectly concluded that Congress had implicitly adopted a 2015 FCC Order—which had purportedly advocated for a broad reading of the ATDS definition—as the order was under review at the time of its supposed adoption and in any event was eventually overruled. Facebook Brief at 42; Government’s Brief at 31–32. The briefs also touch upon the many constitutional and practical problems that would arise if every device that had the capacity to store and dial numbers was treated as an ATDS for purposes of the TCPA. See Facebook Brief at 49–50; Government’s Brief at 33–34.
Amicus briefs in support of Facebook are due on Friday. We will be monitoring this matter closely and will report on other briefs as they are Facebook SCOTUS Brief filed.