In 1991, Congress took action against the onslaught of undesired robocalls faced by households and individuals. The Telephone Consumer Protection Act (TCPA) established a variety of safeguards aimed at reducing the amount of uninvited calls consumers receive. One of the most important provisions of the TCPA prohibits the use of “any automatic telephone dialing system” (autodialer) to place unsolicited calls. The statute defines an autodialer as “equipment which 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.”
Precisely what falls within the scope of an autodialer has already been subject to much debate. In 2003, the Federal Communications Commission, the agency with authority to administer the TCPA, determined that the use of an autodialer encompassed sending text messages. Much more recently in 2018, the U.S. Court of Appeals for the District of Columbia rejected the FCC’s interpretation of “capacity” which included potential functionalities or future possibilities, as opposed to merely present capacity, as impermissibly broad.
The Facebook v. Duguid Decision
On April 1, 2021, the Supreme Court issued a decision that renders another important interpretive judgment as to what falls under the scope of an autodialer. The recent case, Facebook v. Duguid, determined whether automated text messages sent by Facebook violate the TCPA. The Ninth Circuit had held that the autodialer prohibition applies to notification systems like Facebook’s that automatically dial stored numbers. Upon Facebook’s appeal, however, the Supreme Court unanimously disagreed.
The Supreme Court’s ruling hinged on the statute’s specification that an autodialer must use a “random or sequential number generator.” Facebook’s notification system does not utilize this technology, but instead sends targeted text messages to numbers linked to specific accounts. To find this system within the scope of an autodialer under the TCPA would be overbroad, according to the Court, as equipment with the capacity to store and dial numbers would include virtually all modern cell phones. The Court also claimed that such a reading is more aligned with Congress’s concerns in enacting the statute: “Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of the sequentially numbered lines at a single entity.” According to the Court, a system that merely stores and dials numbers does not threaten these same dangers.
A recent statement by U.S. Senator Edward Markey (D-Mass.), one of the TCPA’s original authors in 1991, called this ruling “disastrous,” stating that “it was clear when the TCPA was introduced that Congress wanted to ban dialing from a database… by narrowing the scope of the TCPA, the court is allowing companies the ability to assault the public with a non-stop wave of unwanted calls and texts, around the clock.” To this point, the Court’s claims regarding the unique harms posed by random number generators, as opposed to the store and dial system used by Facebook, are less convincing. Outrage surrounding abusive telemarketing calls to average consumers drove enactment of the TCPA.
It seems likely that this ruling opens the door for precisely what Senator Markey fears. In our current technological landscape, much of the dominant automated dialing technology does not use a random or sequential generator, but instead targets individuals using the massive amounts of data collected on American consumers. Under Facebook v. Duguid, this type of system is not restricted under the TCPA, exposing a new vulnerability for exploitation that consumers should expect companies will take advantage of.
Take It Up With Congress
While the outcomes of this ruling may be unsavory, it is hard to argue that the Court’s decision was not compelled by the language of the statute. Senator Markey, along with Representative Anna Eshoo (D-Calif.), issued a statement of intent to introduce legislation to amend the TCPA in order to “fix the court’s error.” Yet as the Court itself pointed out– “Duguid’s quarrel is with Congress.” It is not the job of the Court to fix outdated legislation, especially where the text demands the application of an explicit definition. It is our Senators and Representatives who must take up the mantle to craft legislation for the 21st century. And Consumer Reports has urged Congress to act quickly, as there is “no enforceable way for a consumer to stop” the potentially unlimited number of calls and texts this ruling has opened the way for.
* Sophie LaCava is an Associate Editor on the Michigan Technology Law Review.