In a hotly anticipated decision that should have significant impact on litigation under the Telephone Consumer Protection Act of 1991 (TCPA), the Supreme Court held, 9-0, that the TCPA’s definition of an “autodialer” does not include equipment that merely stores telephone numbers to be dialed automatically, unless the equipment does so using a random or sequential number generator. Facebook, Inc. v. Duguid, No. 19-511 (U.S., April 1, 2021).
Stopping unwanted or harmful telemarketing calls has long been a consumer-protection priority. Toward that end, the TCPA prohibits certain communications made with an “automatic telephone dialing system,” or “autodialer.” 47 U.S.C. § 227(b)(1). The TCPA defines “autodialers” as equipment with the capacity “to store and produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers. 47 U.S.C. § 227(a)(1). There was no dispute that the last clause (“using a random or sequential number generator”) qualifies the last verb in the preceding clause (“produce”). The exam-worthy question before the Court, however, was whether that last clause also qualifies the first verb in the preceding clause, “store.” Put another way, does the TCPA’s definition of autodialer apply to all equipment that “store[s] … telephone numbers to be called,” even if the equipment does not do so “using a random or sequential number generator?” (The facts of the case play no real role here, but, for context, Facebook used equipment that stored numbers to be dialed automatically, but did not use a random or sequential number generator, so the question was whether Facebook’s equipment fell with the TCPA definition of autodialer).
The stakes were high. Facebook argued that the plaintiff’s interpretation would treat millions of modern smartphones as autodialers, subjecting smartphone owners to liability for using their phones for everyday tasks, such as speed dialing or sending automated text message responses. On the plaintiff side, there was a circuit split to be resolved, and a win could open the door to more TCPA claims against companies whenever they use equipment that can store and then dial numbers without human intervention.
Despite the stakes, and even though it was reversing the Ninth Circuit, the unanimous Court did not find the issue difficult. Rather, it was a grammar problem. The Court led off with the “series-qualifier canon” of construction, which it derived primarily from the book Reading Law by Antonin Scalia and Bryan Garner. Scalia and Garner described the canon as providing that “‘[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the end of the list ‘normally applies to the entire series.’” Facebook, slip op. at 5. The Court reasoned that the phrase “store or produce telephone numbers to be called” “hangs together as a unified whole,” and so it would be odd to apply the modifying clause (“using a random or sequential number generator”) to apply only to part of that preceding clause. Id. at 6. The Court also determined (again citing Reading Law and other treatises) that the punctuation of the language at issue – where the modifying clause was separated from the integrated “store or produce” clause by a comma – further suggested that the modifying clause applied to all of the preceding integrated clause, not just to the verb “produce.” Id.
The plaintiffs relied on canons of their own, leading with the rule of the last antecedent, but the Court was not swayed. That canon, it said, normally does not apply where the modifying clause appears after an integrated list, and, in any event, the true last antecedent before the modifying clause was “telephone numbers to be called,” not “produce.” In their other canon argument, plaintiffs argued that the “distributive canon” provides that “‘[w]here a sentence contains several antecedents and several consequents,’” courts should “‘read them distributively and apply the word to the subjects which, by context, they seem most properly to relate.’” Id. at 10, quoting 2A Singer, Sutherland Statutes and Statutory Construction 47:26, at 448. The Court found the relevance of that canon “highly questionable” because there were two antecedents (“store” and “produce”) but only one subsequent modifier (“using a random or sequential number generator”), so there was no way to “distribute” the antecedents and modifiers to each other 1:1. Id. at 10-11.
While the textual analysis would have been enough, the Court also discussed the statutory context, noting that the TCPA’s provisions on autodialer calls address specific problems, yet the plaintiff’s interpretation of an autodialer “would take a chainsaw to these nuanced problems when Congress meant to use a scalpel” by making “virtually all modern cell phones” subject to the TCPA “in the course of commonplace usage.” Id. at 8. The Court also rejected the plaintiffs’ argument that the “sense” of the text showed that “using a random or sequential number generator” did not apply to the verb “store,” because a “generator” is not used for “storing” numbers (but is used to “produce” them). The Court conceded that “in ordinary parlance” it would be “odd” to say that a random number “generator” is used to “store” numbers. But it then noted that random number generators do, in fact, appear to be able to be used for that purpose. Id. at 9.
Finally, although the result was 9-0, Justice Alito wrote a concurrence to emphasize that canons of construction are guides, not rules, and must be applied with sensitivity to context. That is especially so when it comes to the series-qualifier canon, he wrote, giving examples of where mechanically applying that canon would lead to the wrong result by ignoring the context of the language at issue.
The Facebook decision resolves a circuit split and may reduce the level of TCPA autodialer litigation, and may also lead to calls to update the TCPA in light of modern technology. More broadly, it is reminder of the difficulties that can arise from imprecise statutory drafting.
For questions regarding this post or other telecommunications issues, please contact J. Tyson Covey or Brian McAleenan at Duane Morris LLP.