Amicus Curiae Brief — Facebook, Inc., Petitioner v. Noah Duguid, et al.

Supreme Court briefSep 11, 2020

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No. 19-511

In the Supreme Court of the

United States

F ACEBOOK , I NC .,

Petitioner,

N OAH D UGUID , ET AL .

Respondents.

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR HEALTHCARE COMPANIES

AS AMICI CURIAE SUPPORTING

PETITIONER

MAXWELL V. PRITT

SHIRA R. LIU

Counsel of Record

BOIES SCHILLER

FLEXNER LLP

725 S. Figueroa St., 31st Fl.

44 Montgomery Street, Los Angeles, CA 90017

41st Floor

sliu@bsfllp.com

San Francisco, CA 94104

SAMUEL C. KAPLAN

(415) 293-6800

BOIES SCHILLER

mpritt@bsfllp.com

FLEXNER LLP

1401 New York Ave. N.W.

Washington, D.C. 20005

skaplan@bsfllp.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................. iii

INTEREST OF AMICI CURIAE ....................... 1

SUMMARY OF ARGUMENT ........................... 3

ARGUMENT .................................................... 7

Amici Use Dialing Equipment That

Does Not Use Random or Sequential

Number Generators for Critical

Health Care Outreach to Members

by Call Representatives. ......................... 7

II.

Amici’s calls serve vital

healthcare needs. ...................................7

Making healthcare calls without

the use of dialers would be

logistically impractical and cost

prohibitive. .............................................9

The Ninth Circuit’s Interpretation

of “Automatic Telephone Dialing

System” is Incorrect. ............................ 11

The TCPA’s text, structure, and

legislative history foreclose the

Ninth Circuit’s interpretation. ............ 11

The text and structure of

47 U.S.C. § 227(a)(1)

foreclose the Ninth

Circuit’s interpretation. ............ 11

TABLE OF CONTENTS—continued

III.

Legislative history and

contemporary

understanding foreclose

the Ninth Circuit’s

interpretation. ........................... 16

The Court should reject the

Ninth Circuit’s interpretation to

avoid the constitutional problems

it would create...................................... 24

The Ninth Circuit’s Interpretation

Would Stifle Speech, Increase

Healthcare Costs, and Threaten

Unwarranted and Exorbitant

Financial Liability. ............................... 28

CONCLUSION............................................... 35

iii

TABLE OF AUTHORITIES

CASES

Abdeljali v. Gen. Electric Capital Corp.,

306 F.R.D. 303 (S.D. Cal. 2015) ........................... 33

ACA Int’l v. Fed. Commc’ns Comm’n,

885 F.3d 687 (D.C. Cir. 2018) .................. 31, 32, 33

Allan v. Pennsylvania Higher Educ. Assistance

Agency,

968 F.3d 567 (6th Cir. 2020) ................................ 16

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................................. 24

Brown v. DirecTV, LLC,

330 F.R.D. 260 (C.D. Cal. 2019) .......................... 33

Denver Area Educ. Telecommunications

Consortium, Inc. v. FCC,

518 U.S. 727 (1996) .............................................. 25

FCC v. Pacifica Found.,

438 U.S. 726 (1978) .............................................. 27

Gadelhak v. AT&T Services, Inc.,

950 F.3d 458 (7th Cir. 2020) ................................ 16

Gehrich v. Chase Bank USA, N.A.,

316 F.R.D. 215 (N.D. Ill. 2016) ............................ 29

Glasser v. Hilton Grand Vacations Co.,

948 F.3d 1301 (11th Cir. 2020) ...................... 16, 23

Hagood v. Portfolio Recovery Assocs., LLC,

No. 3:18-cv-1510 (May 17, 2019) ......................... 10

Hunter v. Time Warner Cable Inc.,

2019 WL 3812063 (S.D.N.Y. Aug. 14, 2019) ....... 32

TABLE OF AUTHORITIES—continued

In re Capital One Telephone Consumer

Protection Act,

80 F. Supp. 3d 781 (N.D. Ill. 2015) ...................... 29

Johnson v. Navient Sols, Inc.,

315 F.R.D. 501 (S.D. Ind. 2016) ........................... 33

Knapper v. Cox Commc’ns, Inc.,

329 F.R.D. 238 (D. Ariz. 2019)............................. 33

Krakauer v. DISH Network L.L.C.,

311 F.R.D. 384 (M.D.N.C. 2015) .......................... 33

Marden’s Ark, Inc. v. UnitedHealth Group,

Inc.,

No. 19-cv-1653, Doc. 67 (D. Minn.) ...................... 31

Marks v. Crunch San Diego, LLC,

904 F.3d 1041 (9th Cir. 2018) .............................. 15

Matlock v. United Healthcare Services, Inc.,

No. 2:13-cv-02206 (E.D. Cal.) .............................. 30

Missouri ex rel Nixon v. American Blast Fax,

Inc.,

323 F.3d 649 (8th Cir. 2003) ................................. 27

Morris v. UnitedHealthcare Ins. Co.,

2016 WL 7115973 (E.D. Tex. Nov. 9, 2016),

report and recommendation adopted, 2016

WL 7104091 (E.D. Tex. Dec. 6, 2016) .................. 30

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) .......................................... 25

TABLE OF AUTHORITIES—continued

Panzarella v. Navient Sols., LLC,

No. 18-cv-3735, 2020 WL 3250508 (E.D. Pa.

June 16, 2020) ...................................................... 10

Perrong v. Golden Rule Insurance Company

and American Select Partners, LLC,

No. 19-cv-01940 (S.D. Ind. Oct. 8, 2019) ............. 30

Samson v. United Healthcare Services, Inc.,

2:19-cv-00175 (W.D. Wash.)................................. 30

Turner Broadcasting Sys., Inc. v. FCC,

520 U.S. 180 (1997) .............................................. 25

West v. California Servs. Bureau, Inc.,

323 F.R.D. 295 (N.D. Cal. 2017) .......................... 33

Wilkins v. HSBC Bank Nevada, N.A.,

2015 WL 890566 (N.D. Ill. Feb. 27, 2015) ........... 30

Zadvydas v. Davis,

533 U.S. 678 (2001) .............................................. 24

FEDERAL REGULATIONS

47 C.F.R. § 64.1200(f)(4) ........................................... 33

47 U.S.C. § 227(a)(1)(A) ............................................ 10

47 U.S.C. § 227(b)(1)(A) ............................ 4, 12, 32, 33

47 U.S.C. § 227(b)(1)(D) ............................................ 12

47 U.S.C. § 227(b)(4) ................................................. 29

47 U.S.C. § 227(g)(1).................................................. 29

47 U.S.C. § 277(b)(2)(C) ............................................ 26

Cal. Welf. & Inst. Code § 14182.17(d)(2)(A) ...............8

TABLE OF AUTHORITIES—continued

Fla. Stat. Ann. § 641.545 ............................................8

In re Rules and Regulations Implementing the

TCPA of 1991, CG Docket No. 02–278,

Report and Order,

30 FCC Rcd. 7961 (July 10, 2015) ................. 32, 33

In the Matter of the Telephone Consumer

Protection Act of 1991, CC Docket No. 92–

90, Notice of Proposed Rule Making,

7 FCC Rcd. 2736 (1992) ................................. 27, 33

Sup. Ct. R. 37.3 ............................................................1

Sup. Ct. R. 37.6 ............................................................1

Telephone Consumer Protection Act of 1991,

Pub. L. No. 102-243, 105 Stat. 2394 ................... 27

Telephone Disclosure And Dispute Resolution

Act,

Pub. L. No. 102-556, 106 Stat. 4181 (Oct.

28, 1992) ............................................................... 26

OTHER AUTHORITIES

Amanda Cassidy

Care for Dual Eligibles, Health Affairs

(June 13, 2012) .......................................................9

Centers for Medicare & Medicaid Services

(CMS)

Redetermination of Part D Low-Income

Subsidy Eligibility for 2020 (Aug. 22, 2019) .........8

vii

TABLE OF AUTHORITIES—continued

Centers for Medicare & Medicaid Services

(CMS),

Medicare-Medicaid Capitated Financial

Alignment Model Reporting Requirements

(Nov. 1, 2019) .........................................................8

Equal Billing for Long Distance Charges

Before the Subcomm. on Commc’n of the S.

Comm. on Commerce, Science, and

Transportation,

102nd Cong. 3 (1991) ........................................... 17

FCC

Annual Report and Analysis of Competitive

Market Conditions with Respect to Mobile

Wireless, Including Commercial Mobile

Services (Sept. 27, 2017) ...................................... 31

FCC

Wireline Competition Bureau and

Consumer and Governmental Affairs

Bureau Seek Comment on Technical

Requirements for Reassigned Numbers

Database (Jan. 24, 2020) ..................................... 32

H.R. Rep. No. 102-317, 102d Cong., 1st Sess.

10 (1991) ........................................................ 18, 27

S. Rep. No. 102-178, 102d Cong., 1st Sess. 2

(1991) ............................................................ passim

INTEREST OF AMICI CURIAE 1

Amici are healthcare companies that depend on

telephonic outreach by call representatives to inform

their members of important information about their

health care and benefits.

Aetna, a CVS Health business, serves an estimated 34 million people with information and resources to help them make better-informed decisions

about their health care. Aetna offers a broad range of

traditional, voluntary, and consumer-directed health

insurance products and related services, including

medical, pharmacy, dental, and behavioral health

plans, and medical management capabilities, Medicaid health care management services, workers’ compensation administrative services, and health information technology products and services. Aetna’s

customers include employer groups, individuals, college students, part-time and hourly workers, health

plans, health care providers, governmental units, government-sponsored plans, labor groups, and expatriates.

The California Association of Health Plans

(“CAHP”) is a statewide trade association representing 45 public and private health care service

1 Pursuant to Supreme Court Rule 37.3, amici certify that all

parties have consented to the filing of this brief. Pursuant to

Rule 37.6, amici certify that no counsel for a party authored this

brief in whole or in part, and no persons other than amici or their

counsel made a monetary contribution to its preparation or submission.

plans that collectively provide coverage to over 28 million Californians. CAHP members include health

plans regulated by the California Department of Managed Care (DMHC) and Department of Health Care

Services (DHCS) to provide Medicare, Commercial,

and Medicaid (Medi-Cal) benefits. CAHP members

routinely conduct outreach to enrollees – including

through telephone calls – to comply with state and

federal requirements.

Molina Healthcare, Inc. is a healthcare management organization that provides services to families

and individuals who qualify for government-sponsored programs like Medicare and Medicaid. Through

its locally operated health plans in fourteen states and

Puerto Rico, Molina serves approximately 3.3 million

members.

United HealthCare Services, Inc. (“United”) is one

of the largest healthcare companies in the United

States. It offers or administers health benefits for

over 45 million people in all 50 states and several U.S.

territories. United’s network of providers includes 1.3

million physicians and other healthcare professionals,

and more than 6,000 hospitals and other facilities. Its

programs include employer-sponsored plans, plans for

veterans, Medicare (for older and disabled individuals), and Medicaid (for low-income individuals) in

most states. United also partners with Optum, Inc.,

an affiliated company, to coordinate patient care,

manage pharmacy benefits, use technology and data

analytics, and improve the affordability of care.

To conduct the necessary outreach to members,

amici regularly rely on dialing equipment that is the

subject of the interpretative dispute before the Court.

Certain amici also have been or currently are defendants in class action lawsuits brought under the Telephone Consumer Protection Act (TCPA) that are

based in part on an interpretation of the ATDS prohibition that the Third, Seventh, and Eleventh Circuits

properly reject and the Second, Sixth, and Ninth Circuits have incorrectly adopted. Amici therefore have

a direct and substantial interest in the Court’s interpretation of this provision.

SUMMARY OF ARGUMENT

I. Companies that offer health-benefit plans regularly call their members to help them with their

healthcare needs and to ensure their members understand, use, and maintain their coverage. Amici make

tens of millions of such calls annually. Those calls

must be timely and tailored to a diverse set of plans,

government requirements, and healthcare needs.

Many of these calls are legally mandated or strongly

supported by state and federal agencies.

Cell phones also are increasingly the preferred

telephone number provided by members. They are often the only contact number for particularly vulnerable members—such as members dual-eligible for Medicare and Medicaid—who often lack stable housing

that would allow other forms of urgent contact.

Given that amici often must make a high volume

of calls, amici do not (and cannot) make calls by having call representatives enter phone numbers manually. Instead, for many calls they use various types of

dialing equipment to ensure timely outreach. This

equipment dials member-provided phone numbers

and connects whomever picks up to a live representative. The equipment does not “us[e] a random or sequential number generator” “to store or produce telephone numbers,” since amici use the equipment to call

phone numbers their members have already provided

to them.

II. The TCPA prohibits making “any call (other

than a call made for emergency purposes or made with

the express prior consent of the called party) using

any automatic telephone dialing system or an artificial or prerecorded voice” to specified types of phone

numbers, including cell phone numbers. 47 U.S.C.

§ 227(b)(1)(A). The Ninth Circuit interprets “automatic telephone dialing system” to encompass any

equipment with the capacity to store and dial numbers, including smartphones and equipment used by

amici to make critical healthcare calls.

The text, structure, and legislative history all

make clear that this interpretation is wrong. Instead,

as the Third, Seventh, and Eleventh Circuits recognize, an ATDS must have the capacity to “store or produce numbers to be called, using a random or sequential number generator.” By interpreting that qualifier

to apply only to the verb “produce” and not “store,” the

decision below effectively read that qualifier out of the

statute, and thereby swept in a vast number of phone

calls that Congress did not intend to proscribe. Congress’s primary target was prerecorded messages

without prior consent, referred to by Senator Hollings

in introducing the Senate bill, as the “scourge of modern civilization.” To Congress, such calls posed unique

harms that justified treating them differently from

calls by live representatives. The prohibition on

ATDS calls addresses the additional harms that Congress perceived from random and sequential dialing.

The Ninth Circuit’s interpretation also should be

rejected because it would render the ATDS prohibition unconstitutional. Emphasizing that it was mindful of the First Amendment in crafting the TCPA’s

prohibitions, Congress offered a constitutional justification for the relevant provision that rested on the distinction between prerecorded messages and calls involving live persons. Congress offered no justification

for prohibiting the use of technology that simply

stores and dials numbers to make live voice calls without using a random or sequential number generator.

Such a prohibition would not be narrowly tailored to

address the interests identified in the legislative record, and the Court should adopt the interpretation

Congress defended, not the unconstitutionally overbroad one it did not.

III. The Ninth Circuit’s interpretation would suppress a significant amount of speech in a way that

Congress did not intend. Further, it would increase

the cost of telephonic healthcare outreach by penaliz-

ing the use of efficient equipment that makes it possible to connect live representatives to members. Misinterpretation of the ATDS provision has significantly

contributed to the explosion of TCPA litigation that

has resulted from call recipients’ use of class actions

to aggregate $500-$1,500 per-call statutory damages

claims for millions of calls. Congress established such

penalties with small-claims enforcement in mind, not

class actions, but the threat of ruinous liability from

combining the two now regularly induces large settlements from defendants, including where they have

strong defenses and equally strong grounds for opposing class certification.

The situation of health-benefits plans illustrates

how far TCPA litigation has deviated from Congress’

intent. Such plans have consent to call and text their

members on their cell phones for matters concerning

their health care and benefits. Further, whether because they are health insurance companies or because

of the nature of their calls, they have additional defenses and justifications for opposing class certifications that are unavailable to others. Yet non-member

class-action plaintiffs still seek billions of dollars in liability in an attempt to exploit legal uncertainty over

“wrong number” calls that were intended for members

but unavoidably reach non-members given the number of calls, the frequency of cell phone number

“churn,” and the current absence of a reliable recycled

cell phone number database.

Reversing the decision below will not eliminate

TCPA class action litigation or even “wrong number”

TCPA litigation. Regardless of its outcome, Congress’s primary concern—non-emergency calls using

pre-recorded messages without prior consent—will remain prohibited, as will other provisions such as the

prohibition on unsolicited fax advertising. Nevertheless, reversal is necessary to correct a serious misinterpretation of the TCPA that has expanded its scope

well beyond what Congress intended.

ARGUMENT

Amici Use Dialing Equipment That Does Not

Use Random or Sequential Number

Generators for Critical Health Care

Outreach

Members

Call

Representatives.

A. Amici’s

needs.

calls

serve

vital

healthcare

Amici make tens of millions of calls annually to

provide their members with critical information about

their health care and benefits. Once the calls are connected, members typically speak with speciallytrained employees of amici who are able to discuss individual health issues with members.

Many such calls are at the government’s behest or

tailored to help members navigate the requirements

for government benefits. Outreach to low-income

Medicaid members is one example. Most Medicaid

beneficiaries must reapply annually for a subsidy that

allows them to afford coverage and purchase prescription drugs despite their limited resources. See, e.g.,

Memorandum from Jerry Mulcahy, Director, Centers

for Medicare & Medicaid Services, to Part D Sponsors

re Re-determination of Part D Low-Income Subsidy

Eligibility for 2020, at 2 (Aug. 22, 2019).2 CMS thus

“expects Plan D sponsors [such as amici] to reach out

by phone or mail to every member” who does not qualify automatically for subsidy, even providing a “Model

Outbound Script for Calls.” Id. at 4, 6. CMS also requires amici to contact Medicare members for annual

Health Risk Assessments, assessing various aspects

of members’ health status. See, e.g., Centers for Medicare & Medicaid Services (CMS), Medicare-Medicaid

Capitated Financial Alignment Model Reporting Requirements, at 21, 24, 28 (Nov. 1, 2019).3 Many states

also require amici to contact their Medicaid members

for the same purpose. See, e.g., Fla. Stat. Ann.

§ 641.545; Cal. Welf. & Inst. Code § 14182.17(d)(2)(A).

Amici also call their members for any number of

purposes designed to address their health care and

coverage. For example, amici contact members to inform them of gaps in care, including in areas such as

breast cancer, colorectal screening, flu shots, annual

wellness exams, diabetic and retinal eye exams, and

osteoporosis management. Amici likewise contact

2 Available at https://www.hhs.gov/guidance/sites/de-

fault/files/hhs-guidance-documents/2019%2520redeem%2520plan%2520letter%2520final_1.pdf.

3 Available at https://www.cms.gov/Medicare-Medicaid-Coordi-

nation/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/FinancialAlignmentInitiative/MMPInformationandGuidance/Downloads/CoreReportingR

eqsCY2020.pdf.

their members to ensure medication efficacy and adherence.

In addition, amici call parents to help them apply

for Children’s Health Insurance Program (CHIP) benefits to obtain healthcare coverage for their children.

They also make calls to millions of Americans who

qualify for both Medicare and Medicaid. Many of

these “dual-eligible” members are age 65 or older,

have cognitive impairments, suffer from several

chronic conditions, and make less than $10,000 per

year. See Amanda Cassidy, Care for Dual Eligibles,

Health Affairs 1–3 (June 13, 2012). Amici often also

call dual-eligible members to welcome them to the

program, explain the complex annual recertification

requirements, check on their health, and educate

them about their benefits.

B. Making healthcare calls without the use

dialers

would

logistically

impractical and cost prohibitive.

Dialers facilitate tens of millions of healthcare

calls annually to members by call representatives.

Without the ability to dial members’ numbers with

such equipment, timely healthcare outreach by live

representatives on the necessary scale and in the necessary time frame is logistically impractical and cost

prohibitive given the number of additional steps for

every call live representatives would have to make.

These steps include (1) reviewing a list of phone numbers and associated member information; (2) confirming it is daytime in the intended recipient’s time zone;

(3) inputting the intended recipient’s phone number;

(4) waiting as the call dials and the phone rings; and

(5) resolving the call by manually recording data if the

call hits a busy tone, full voicemail box, out-of-service

number, or other unsuccessful result, waiting for an

answering machine message to end and leaving a

voicemail, or speaking to the call recipient.

Dialers eliminate all but part of step five. The dialing equipment dials phone numbers that amici’s

members provide, which are loaded into the system

when necessary to call them.4 When a member answers, the equipment instantly connects that person

to a live representative. The representative’s time is

used efficiently by the equipment’s ability to dial several numbers at once, based on the number of representatives available, and to transfer a call to them

only when someone (or something) picks up. The

equipment also automatically logs unsuccessful calls

without the need for the representative to do so.

4 It does not use “a random or sequential number generator.”

U.S.C. § 227(a)(1)(A); cf., e.g., Decl. of Joshua Cherkasly, Hagood

v. Portfolio Recovery Assocs., LLC, No. 3:18-cv-1510 (May 17,

2019), Doc. 36-3, at 6-7 (detailing four steps needed to generate

numbers using Avaya Proactive Contact, which is dialing equipment also used by United); Panzarella v. Navient Sols., LLC, No.

18-cv-3735, 2020 WL 3250508, at *1 n.1, *3 (E.D. Pa. June 16,

2020) (holding that Genesys, which is dialing equipment also

used by Optum, lacks the capacity to generate numbers).

II. The Ninth Circuit’s Interpretation of

“Automatic Telephone Dialing System” is

Incorrect.

A. The TCPA’s text, structure, and

legislative history foreclose the Ninth

Circuit’s interpretation.

1. The text and structure of 47 U.S.C.

§ 227(a)(1) foreclose the Ninth Circuit’s

interpretation.

This case requires the Court to interpret the term

“automatic telephone dialing system,” defined 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.” 47 U.S.C. § 227(a)(1).

As interpreted by the Ninth Circuit, the TCPA

prohibits calls to cell phones using any equipment

that has the capacity to store and dial numbers, regardless of whether it uses a random or sequential

number generator. As shown in detail by Petitioner

and the United States, as well as the Third, Seventh,

and Eleventh Circuits, the statutory text and canons

of construction foreclose that interpretation. See Br.

for Petitioner at 21-43; Br. for the United States as

Respondent Supporting Petitioner at 15-24. Amici do

not expand on that analysis.

Rather, amici point here to certain aspects of the

TCPA’s structure and legislative history (see next

subsection) that similarly foreclose the Ninth Circuit’s

interpretation. Both show that Congress enacted this

provision to address the particular harms it identified

from calls using artificial and prerecorded messages

without consent and calls to randomly or sequentially

generated numbers.

Congress prohibited calls using prerecorded messages without prior consent and without regard for

content or recipient, other than exempting calls for

emergency purposes and FCC-exempted calls. 47

U.S.C. § 227(b)(1)(A), (B). By contrast, Congress generally permitted live calls with or without prior consent.

Specifically, it permitted non-ATDS live calls of

any type to cell phones and emergency lines. It also

permitted ATDS calls to residences and all live noncommercial calls and even live telemarketing calls

where the recipient has not opted out. Congress’s general willingness to permit live calls undermines an interpretation that would encompass any equipment

that can store and dial numbers. Such equipment just

makes it more cost-efficient to make the live calls that

Congress otherwise permitted. Further, the only prohibition that applies to ATDS calls alone addresses

calls that occupy multiple lines of a business—a concern related to random or sequential dialing. 47

U.S.C. § 227(b)(1)(D).

Understanding the ATDS prohibition as limited to

equipment that uses a random or sequential number

generator also explains why Congress did not prohibit

ATDS calls to residences but did prohibit them to

other categories of numbers—i.e., calls to emergency

numbers, lines at hospitals and elderly homes, and

numbers assigned to mobile and pager services. As

documented throughout the legislative record, randomly or sequentially dialed calls to numbers in these

categories posed a heightened risk of harm. See Section II(A)(2) infra.

Congress’s findings (Section 2 of Pub. L. 102-243)

further demonstrate its simultaneous concern with

addressing the harms caused by prerecorded messages without consent while limiting infringement of

noncommercial speech and “legitimate” telemarketing

activities. They show no concern for technology that

just facilitated live calls by storing and dialing numbers from preexisting lists.

The first nine findings address telemarketing

generally and the importance of balancing “[i]ndividuals’ privacy rights, public safety interests, and commercial freedoms of speech and trade” in a way “that

protects the privacy of individuals and permits legitimate telemarketing practices.” The remaining six address Congress’s justification for prohibiting what it

referred to as “automated or prerecorded calls”—i.e.,

calls that used either a prerecorded message or an artificial computer voice.5 Nothing suggests that Congress viewed equipment that just facilitated otherwise

5 The words “automated or prerecorded telephone calls” neces-

sarily referenced the limitations on calls that use an artificial or

prerecorded voice to deliver the message. Finding 12 states that

“Banning such automated or prerecorded telephone calls to the

home” other than in emergency situations “is the only effective

means of protecting telephone consumers from this nuisance and

permissible live calls as an “illegitimate” telemarketing practice.

Further, those findings show that Congress was

mindful of constitutional restrictions in crafting the

statute and did not understand the law to impose significant restrictions on noncommercial speech other

than prerecorded messages and the associated concerns with line seizure that the legislative record

linked to prerecorded messages and random and sequential dialing. Finding (8) states that the “Constitution does not prohibit restrictions on commercial

telemarketing solicitations,” and that “[i]ndividuals’

privacy rights, public safety interests, and commercial

freedoms of speech and trade must be balanced in a

way that protects the privacy of individuals and permits legitimate telemarketing practices.”6

Congress’s only express justification for restricting non-commercial speech (Finding 12) applied to

calls with prerecorded or artificial voice messages.

Specifically, Congress found that “residential subscribers consider automated or prerecorded telephone

calls, regardless of the content or the initiator of the

message, to be a nuisance and invasion of privacy.”

The findings also show Congress’s concern over the

public safety risks of line seizure. See Pub. L. 102-243

§ 2(5) (referring in “Congressional Findings” to “the

privacy invasion.” The prohibition on ATDS calls without consent does not apply to calls to the home.

6 This is in part a question of constitutional avoidance, see Sec-

tion II(B), but not exclusively, given the statutory structure and

Congress’s express references to the Constitution in the text.

risk to public safety” from “when an emergency or

medical assistance line is seized”); see also Section

II(B) infra. By contrast, Congress nowhere sought to

justify a prohibition on use of technology that facilitates calls (noncommercial or otherwise) by live representatives to preexisting lists of numbers.

Each of these aspects of the statutory structure—

the concern with prerecorded messages, the mindfulness over not preventing “legitimate” telemarketing

practices or noncommercial speech, the categories of

prohibited ATDS calls, the absence of any proffered

justification for prohibiting technology that just

stored and dialed numbers, and the fact that Congress

did not prohibit manually dialed live calls to cell

phones—favors the interpretation that Congress intended the ATDS prohibition to address the special

harms caused by random or sequential dialing, rather

than any and all speech by live callers using any device that simply stored and dialed numbers.

By contrast, nothing in the statutory structure favors the Ninth Circuit’s reading. The Ninth Circuit

devotes only limited attention to the TCPA’s structure, asserting that the exceptions for prior consent

and government debt collection are inconsistent with

reading the ATDS prohibition as limited to devices

that use randomly or sequentially generated phone

numbers. Marks v. Crunch San Diego, LLC, 904 F.3d

1041, 1050-51 (9th Cir. 2018). This argument ignores

that the prohibitions on ATDS calls and prerecorded

messages appear in the same provision. Thus, it is

irrelevant whether the exceptions would apply sensibly to a prohibition on random and sequentially dialed

calls when they indisputably make sense as exceptions to the prohibition on prerecorded messages.

Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301,

1311–12 (11th Cir. 2020).7 Further, equipment that

could generate random numbers also could be programmed to avoid certain numbers. Gadelhak v.

AT&T Services, Inc., 950 F.3d 458, 466-67 (7th Cir.

2020).

2. Legislative history and contemporary

understanding

foreclose

the

Ninth

Circuit’s interpretation.

The legislative history of the TCPA likewise confirms that Congress intended the provisions to target

the harms caused by calls with prerecorded messages

without prior consent and the additional harm from

random and sequential dialing. As explained in the

Senate Committee Report, Congress found that

[i]t is clear that automated telephone calls

that deliver an artificial or prerecorded voice

message are more of a nuisance and a greater

7 The Sixth Circuit asserts that there “is no basis at all in the

statute for the Eleventh Circuit’s bald assertion that the consent

exception does not apply to automated calls.” Allan v. Pennsylvania Higher Educ. Assistance Agency, 968 F.3d 567, 575 (6th

Cir. 2020). But the Eleventh Circuit makes no such assertion. Instead, the Court observes correctly that the prerecorded

messages prohibition “covers every exemption” and thus explains

why those exceptions are there regardless of their relevance to

the ATDS prohibition. Glasser, 948 F.3d at 1312.

invasion of privacy than calls placed by ‘live’

persons. These automated calls cannot interact with the customer except in preprogrammed ways, do not allow the caller to feel

the frustration of the called party, fill an answering machine tape or a voice recording

service, and do not disconnect the line even

after the customer hangs up the telephone.

S. Rep. No. 102-178, 102d Cong., 1st Sess. 2 (1991), at

4-5.8 The chief sponsor of the Senate bill (Sen. Hollings) thus explained: “The bill does not ban the message: it bans the means to deliver that message—the

computerized voice.” 137 Cong. Rec. 18123 (1991)

(emphasis added); see also S. 1462, The Automated

Telephone Consumer Protection Act of 1991; S. 1410,

The Telephone Advertising Consumer Protection Act;

and S. 857, Equal Billing for Long Distance Charges

Before the Subcomm. on Commc’n of the S. Comm. on

Commerce, Science, and Transportation, 102nd Cong.

3 (1991) (hereafter “Sen. Hr’g Test.”) (statement of

Sen. Hollings) (describing a call with a prerecorded

message stating, “Now that is an example of the automated calls that this Senator is concerned with, not

the live, conversational solicitations. My particular

bill and its thrust is to the automated, mechanically

generated type calls”) (emphasis added). It was “the

computerized call that generates the most significant

8 As introduced in July 1991, S. 1462 contained the same defini-

tion of ATDS and the same prohibition as the final TCPA as to

making any call to a cell phone “using any automatic telephone

dialing system” or “an artificial or prerecorded voice.”

consumer outrage,” and “computerized call” meant

that a computer was delivering the message.9

The legislative history also focuses on the particular harm to public safety caused by random and sequential dialing, generally when combined with use of

prerecorded messages. This concern appears throughout committee reports, floor statements of the laws’

sponsors, and hearing testimony. See S. Rep. No. 102178, at 2 (“some automatic dialers will dial numbers

in sequence, thereby tying up all the lines of a business and preventing outgoing calls”); H.R. Rep. No.

102-317, 102d Cong., 1st Sess. 10 (1991) (“Telemarketers often program their systems to dial sequential

blocks of telephone numbers, which have included

those of emergency and public service organizations,

as well as unlisted telephone numbers”). Such calls

were particularly harmful, Congress found, because of

their capacity to seize multiple lines of an organization until the prerecorded message plays. Id. (the capability to “‘seize’ a recipient’s telephone line and not

release it until the prerecorded message is played,

even when the called party hangs up,” makes “these

9 As the source for the claim of what sorts of calls caused outrage,

Senator Hollings referred to the testimony of Steve Hamm from

the South Carolina Department of Consumer Affairs. Mr. Hamm

made this point graphically clear at the hearing when he stated

that “[o]ne of the constant refrains” he had received from consumers and business leaders who have gotten these kinds of computerized calls is that they wish they had the ability to slam the

telephone down on a live human being . . . slamming a phone

down on a computer just doesn’t have the same sense of release.”

Sen. Hr’g Test. at 9.

systems not only intrusive, but, in an emergency, potentially dangerous as well”).10

Testimony before the House and Senate by a

board member and the president of the mobile telecommunications industry’s trade association identified significant public safety harms from random and

sequential dialing to blocks of cellular and pager networks. As one witness stated:

It is really rough when you come to work every day

with the objective of giving service when you have

outside influences that alter that objective. When

10 See also Sen. Hr’g Test. at 7 (statement of Sen. Pressler) (“Due

to advances in autodialer technology machines can be programmed to deliver a prerecorded message to thousands of sequential phone numbers. . . . There are many examples of autodial machines hitting hospital switchboards and sequentially

delivering a recorded message to all phone lines. In some instances, the calling machine does not release the called party’s

line until the recorded message has ended. This renders the

party’s phone inoperable. In an emergency situation this can create a real hazard.”); 102 Cong. Rec. H11313 (1991) (statement of

Rep. Roukema) (“I have been contacted by a number of physicians in my district who have justifiably complained that their

office emergency lines, typically reserved for critical cases, are

being clogged with unsolicited computer calls”); id. at H11314

(statement of Rep. Markey) (“the process, which has resulted in

the provision being built into this legislation . . . will protect . . .

tens of thousands of physicians and emergency personnel across

the country [] from having their lines stopped by these junk

calls”); Sen. Hr’g Test. at 33–34 (statement of Richard Barton,

Senior Vice President, Direct Marketing Ass’n) (“We think as far

as S. 1462 is concerned—Chairman Hollings’ bill—that it has the

proper focus. It clearly identified the specific problems with what

we call ADRMP machines, the recorded message machines, and

fax problems, things such as line seizure and the prerecorded

messages not providing proper identification.”).

I say outside influences, I’m talking about autodialers that seize up our blocks of numbers.

H.R. 1304 and 1305, Bills to Amend the Communications Act of 1934 to Regulate the Use of Telephones in

Making Commercial Solicitations and to Protect the

Privacy Rights of Subscribers Before the Subcomm. on

Telecommc’n and Fin. H. Comm. on Energy and Commerce, 102nd Cong. 110-11 (1991); see also Sen. Hr’g

Test. at 46 (“[M]ost importantly, sequential calling by

automatic dialing systems can effectively saturate

mobile facilities—thereby blocking provision of service to the public. Because mobile carriers obtain

large blocks of consecutive phone numbers for their

subscribers, automatic dialer transmitted calls can

run through whole groups of paging and cellular numbers at one time.”).

Congressman Markey’s statement just prior to

passage of the final bill succinctly summarized these

concerns:

Automatic dialing machines, on the other

hand, have the capacity to call 20 million

Americans during the course of a single day,

with each individual machine delivering a prerecorded message to 1,000 homes.

In addition, automatic dialing machines place

calls randomly, meaning they sometimes call

unlisted numbers, or numbers of hospitals, police and fire stations, causing public safety

problems.

137 Cong. Rec. 35302 (1991) (emphasis added).

Consistent with this approach, in a section of the

Senate Committee Report entitled “Constitutional

Concerns,” the Committee defended the provision’s

constitutionality because it “regulates the manner

(that is, the use of an artificial or prerecorded voice)

of speech,” and stated that because of the various

harms caused by such calls, “it is legitimate and consistent with the constitution to impose greater restrictions on automated calls than on calls placed by

‘live’ persons.” S. Rep. No. 102-178, at 5 (emphasis

added).

By contrast, Congress offered no constitutional

justification for prohibiting calls by live representatives without prior consent or by technology that just

facilitates such calls. Those calls did not involve the

particular harms Congress was targeting and used to

justify the prohibitions.

Finally, the legislative history makes clear that

Congress’ concern for the equipment used was closely

related to its concern over prerecorded messages. The

Senate Committee Report references automatic dialer

recorded message players (“ADRMPs”) and also contains one reference to automatic dialing and announcing devices (“ADADs”). As the Report explains,

“These machines automatically dial a telephone number and deliver to the called party an artificial or pre-

recorded voice message.” S. Rep. 102-178, at 2 (emphasis added).11 Congress’s focus on the delivery of

prerecorded messages in its discussion of the equipment at issue further confirms that (i) Congress’s concern in enacting the ATDS prohibition was not live

calls to stored lists of numbers and (ii) it was instead

concerned with the closely related additional harm

from randomly or sequentially dialed calls, which

compounded the harms from prerecorded messages

without prior consent.

The grammatically correct reading of the TCPA’s

prohibition on ATDS is therefore also the one that is

most consistent with Congress’s intent as reflected by

the statutory structure and legislative history. Congress did not understand itself to be restricting technologies that merely enabled more calls by live operators to lists of preexisting customers. Instead,

Congress was ensuring that a live person delivered

11 The original House Bill (introduced as the Telephone Advertis-

ing Consumer Rights Act) included the capacity to deliver prerecorded messages as part of the definition of ATDS. H. Rep. 102317 at 2 (defining ATDS as equipment “which has the capacity

. . . (C) to deliver, without initial live operator assistance, a prerecorded voice message to the number dialed, with or without

manual assistance”). Likewise, the House Committee Report explained that “[a]utomatic dialing systems (automatic telephone

dialers coupled with recorded message players) ensure that a

company’s message gets to potential customers in the exact same

way, every time, without incurring the normal cost of human intervention.” Id. at 6. The Report also uses the term “automatic

dialing systems” as interchangeable with the term “automatic

dialer recorded message player.” Id. at 10.

the call, and that callers did not use equipment that

posed the risks of random or sequential dialing.

Indeed, Senator Hollings explained that “[a]ll this

legislation requires is that when a person is called at

home, there must be a live person at the other end of

the line.” 137 Cong. Rec. 30822 (1991); see also id.

(stating that consent from the owner of a cellular

phone “could be obtained by a live person who simply

asks the called party whether he or she agrees to listen to a recorded message”).

Likewise, one witness who favored extending the

bill’s approach to calls to residences to its provisions

on automated calls likewise stated, “It is worth noting

that S. 1462 does not restrict sales pitches delivered

by people, as opposed to tape recordings.” Sen.

Hr’g Test. at 42 (statement of Michael Jacobson, Cofounder, Ctr. For the Study of Commercialism) (emphasis added).

The FCC likewise did not construe the ATDS provision to apply to live calls to preexisting lists of numbers. Instead, “the Commission explained that certain technologies would not qualify as auto-dialers

under the Act because the numbers these devices

called ‘are not generated in a random or sequential

fashion’—a baseline for all covered calls.” See Glasser,

948 F.3d at 1308 (quoting In re Rules & Regulations

Implementing the Telephone Consumer Protection Act

of 1991, 7 FCC Rcd. 8572, 8576 (1992)).

B. The Court should reject the Ninth

Circuit’s interpretation to avoid the

constitutional problems it would create.

Principles of constitutional avoidance also favor

Petitioner’s interpretation and require rejection of the

Second Circuit’s and Ninth Circuit’s interpretation of

the ATDS prohibition. See generally Zadvydas v. Davis, 533 U.S. 678 (2001); see also Bartlett v. Strickland,

556 U.S. 1, 21–22 (2009) (“To the extent there is any

doubt whether § 2 calls for the majority-minority rule,

we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause”).

The Ninth Circuit’s interpretation poses serious constitutional concerns that adoption of Petitioner’s interpretation would avoid.

First, as discussed above, the specific constitutional justifications Congress offered for the statutory

prohibitions at issue addressed the harms from prerecorded messages, which it understood random or sequential dialing to exacerbate. See, e.g., S. Rep. No.

102-178, at 4-5. Even if there were ambiguity, the

Court should choose the interpretation for which Congress sought to offer a constitutional justification.

Further, the Court should decline to adopt an interpretation for which Congress did not offer such a

justification, both because Congress did not intend

that interpretation and because such an interpretation lacks the congressional findings necessary to sustain it under a heightened scrutiny standard. See

Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180,

199 (1997); Denver Area Educ. Telecommunications

Consortium, Inc. v. FCC, 518 U.S. 727, 766 (1996)

(both looking to legislative history for congressional

justifications in applying heightened scrutiny). The

Court also should decline to adopt such an interpretation where, as here, Congress was demonstrably

mindful of the need to justify restrictions on noncommercial speech, yet it failed to justify the massive restriction on live noncommercial speech that would result from the Ninth Circuit’s interpretation.

Second, and related, as interpreted by the Ninth

Circuit, the provision is not narrowly tailored to serve

a substantial government interest, even apart from its

applicability to smartphones. See generally Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017)

(“Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive

intermediate scrutiny, a law must be narrowly tailored to serve a significant governmental interest.”).

Congress had a significant record documenting concerns with calling using random or sequential number

generators. By contrast, under the Ninth Circuit’s interpretation, the ATDS prohibition would require

prior consent for all unsolicited, non-emergency

speech to cell phones using any equipment that can

store or dial numbers. That restriction would not be

narrowly tailored either when applied to modern

smartphones or when applied to the technology that

was available at the time.

Such a law could not be justified by the fact that a

cell phone owner might be charged for the call because, among other things, the law applies even where

the cell phone owner is not charged for the call. A year

after the statute was enacted, Congress provided that

the FCC “may, by rule or order, exempt from the requirements of paragraph 1(A)(iii) of this subsection

calls to a telephone number assigned to a cellular telephone services that are not charged to the called

party.” Telephone Disclosure And Dispute Resolution

Act, Pub. L. No. 102-556, 106 Stat. 4181, 4194-95 (Oct.

28, 1992), enacted as 47 U.S.C. § 277(b)(2)(C) (emphasis added). It therefore did not require it to do so, nor

did it justify prohibiting such calls. The Ninth Circuit’s interpretation thus requires the conclusion that

Congress chose to subject a large amount of constitutionally protected speech to bureaucratic inertia and

$500-$1,500 per-call penalties in the interim.

Also, whatever charges apply would apply to manually-dialed calls by live representatives, and yet Congress did not prohibit those calls. Further, the Senate

Committee Report finds that the charges would be far

less when unaccompanied by prerecorded messages.

See S. Rep. No. 102-178 at 4 n.4 (1991) (“When ‘live’

persons place these telemarketing calls they usually

hang up soon after realizing that the called party is

not personally available, thus minimizing payment.”).

Nor could other concerns such as privacy justify

applying the provision beyond randomly or sequentially dialed calls. As already discussed, Congress

made no attempt to justify a prohibition on the use of

technology that just stores and dials numbers and

makes it more efficient to make live calls that Congress permitted. Instead, Congress generally permitted live calls, including all non-ATDS calls to cell

phones and all noncommercial calls by call representatives to homes without prior consent regardless of

whether the calls are made with an ATDS. The reason is that “[c]alls do not adversely affect the privacy

interests of residential subscribers” so long as they are

non-telemarketing. 7 FCC Rcd. 8752, 8782 (1992).12

If anything, privacy interests are even stronger in the

home. FCC v. Pacifica Found., 438 U.S. 726, 748

(1978) (“In the privacy of the home, . . . the individual’s right to be left alone plainly outweighs the First

Amendment rights of an intruder.”).

Further, the TCPA permits all noncommercial

faxes without prior consent even though it found that

such faxes shift significant costs to recipients. See

Missouri ex rel Nixon v. American Blast Fax, Inc., 323

F.3d 649, 654-55 (8th Cir. 2003) (citing evidence from

legislative record). Congress explained that non-commercial calls “are less intrusive to customers because

they are more expected.” See id. at 655-56 (citing H.R.

Rep. 102-317, at 16). Such a finding presumably

would apply to calls to cell phones as well.

12 See also In the Matter of the Telephone Consumer Protection

Act of 1991, 7 FCC Rcd. 2736, 2737 (1992) (the TCPA’s aim “is to

protect consumers from unrestricted telemarketing, which can

be an intrusive invasion of privacy.”); see Telephone Consumer

Protection Act of 1991, § 2, Pub. L. No. 102-243, 105 Stat. 2394

(Congressional findings).

III. The Ninth Circuit’s Interpretation Would

Stifle Speech, Increase Healthcare Costs,

and Threaten Unwarranted and Exorbitant

Financial Liability.

Adopting the Ninth Circuit’s misinterpretation of

the TCPA will foreclose vast amounts of various types

of speech that otherwise would have happened where

it is not feasible for companies or individuals to obtain

advance consent or to hire live representatives to deliver the message. Moreover, it will increase the cost

of other speech that will still occur but could be much

more efficiently delivered through use of the prohibited technology. It even could make companies indifferent between prerecorded messages and use of automatic dialers to make live calls or send text messages

even though prerecorded messages without prior consent were indisputably Congress’s primary concern in

enacting the TCPA.

In addition, the TCPA currently forces companies

to risk astronomical liability even where they must

make the calls, have consent to call members and customers, have other strong defenses and justifications

for opposing class certification, and call only the numbers their members or customers have provided.

This threat exists because Congress imposed statutory damages for violations of the TCPA ranging

from $500-$1,500 per call, and attorneys bring class

actions seeking to aggregate those claims across what

can be millions of calls.13 Even a low risk of class certification and liability must be taken seriously in

these circumstances, and as a result, even companies

with meritorious defenses and strong bases for opposing class certification face extreme pressure to settle.

For example, in In re Capital One Telephone Consumer Protection Act, 80 F. Supp. 3d 781, 791-92 (N.D.

Ill. 2015), a case brought under the provision at issue

here, the Court concluded that “Plaintiffs would probably face an uphill battle proceeding to trial and, once

there, obtaining relief,” and “there was a very real possibility that Plaintiffs may recover nothing.” Yet the

defendant settled for $75,455,099. Id. at 787.

As another example, in Gehrich v. Chase Bank

USA, N.A., 316 F.R.D. 215, 228–29 (N.D. Ill. 2016),

the Court held that the plaintiffs “would face significant obstacles in continuing to litigate this case,” including (i) a defense on which another defendant in

the same district had obtained summary judgment

and (ii) “serious obstacles to a contested class certification.” Id. at 228. Yet the defendant faced up to

13 In setting the statutory damages amount, Congress appears

neither to have anticipated nor intended that TCPA actions

would be brought as class actions. Instead, with individual enforcement in mind, Congress added a provision allowing lawsuits

to be brought in state court, including small claims court, to

“make it easier for consumers to recover damages from receiving

these computerized calls.” 137 Cong. Rec. 30821 (1991). See also

id. (“Small claims court or a similar court would allow the consumer to appear before the court without an attorney.”). Further, it included a provision allowing enforcement by state attorneys general and later allowed a provision allowing for large FCC

fines. See 47 U.S.C. §§ 227(b)(4),(g)(1).

$16.1-$48.4 billion in liability, id., involving a proposed Settlement Class of 32,297,356, id. at 221. This

amount was so ruinous as to be an incentive for both

the plaintiff and the defendant to agree to a settlement of $34 million to avoid the burdens the defendant’s bankruptcy would have imposed on both of them.

Id. at 228; see also, e.g., Wilkins v. HSBC Bank Nevada, N.A., 2015 WL 890566, at *12 (N.D. Ill. Feb. 27,

2015) (settled for $39,975,000).

The TCPA’s statutory damages penalties have

made it a major source of class-action litigation where

representative plaintiffs who may have received only

a single call can seek certification of classes that can

reach millions of calls. Amicus United alone has faced

and currently faces nationwide class actions for calling cell phones—two of which are brought by serial

litigants who together have filed over 80 TCPA lawsuits. See, e.g., Am. Countercls. at ¶ 3, Perrong v.

Golden Rule Insurance Company and American Select

Partners, LLC, No. 19-cv-01940 (S.D. Ind. Oct. 8,

2019), ECF No. 38 (college student plaintiff who has

filed over 50 other TCPA cases); Morris v. UnitedHealthcare Ins. Co., 2016 WL 7115973, at *6 (E.D. Tex.

Nov. 9, 2016) (enterprising plaintiff who has “thought

about franchising his TCPA lawsuits” and filed at

least 36), report and recommendation adopted, 2016

WL 7104091 (E.D. Tex. Dec. 6, 2016).14 In all the

14 Two pending cases are based in part on the provision at issue.

See Matlock v. United Healthcare Services, Inc., No. 2:13-cv02206 (E.D. Cal.); Samson v. United Healthcare Services, Inc.,

2:19-cv-00175 (W.D. Wash.). In a third, the plaintiff narrowed

United suits, the calls at issue were intended to reach

members to help them with healthcare needs such as

diabetic care, compliance with state requirements for

retaining Medicaid coverage, prescription refills, flu

shots, and more.

Companies may face putative class action lawsuits even when (as is the case with amici) they intend

to call only the numbers that customers provide them

for the purpose. This is because cell phone holders

frequently change their numbers, and those numbers

are then reassigned without the company’s

knowledge. See FCC, Annual Report and Analysis of

Competitive Market Conditions with Respect to Mobile Wireless, Including Commercial Mobile Services

¶ 27, FCC 17–126 (Sept. 27, 2017) (annual churn rate

of 26.3%).

As a result of this frequent cell phone “churn” and

numerous other obstacles, the FCC has recognized

that “the most careful caller, after employing all reasonably available tools to learn about reassignments,

‘may nevertheless not learn of reassignment before

placing a call to a new subscriber.’” ACA Int’l v. Fed.

Commc’ns Comm’n, 885 F.3d 687, 705 (D.C. Cir. 2018)

(quoting In re Rules and Regulations Implementing

the TCPA of 1991, 30 FCC Rcd. 7961, 8009 (2015)

the proposed class to prerecorded messages solely to avoid a stay

pending the Court’s decision in this case. Marden’s Ark, Inc. v.

UnitedHealth Group, Inc., No. 19-cv-1653, Doc. 67 (D. Minn.).

(2015 Order)).15 Because every change can result in

an inadvertent call to a non-member TCPA litigant,

and because healthcare companies have millions of

members who require frequent calls about their

health care needs, such calls have exposed United and

many other companies to class action lawsuits based

upon the type of calls described above.

Lawsuits based on 47 U.S.C. § 227(b)(1)(A) are

quite common. So are so-called wrong number class

actions involving calls to reassigned numbers, and

even though certification of such classes is typically

unwarranted for a number of reasons, see, e.g., Hunter

v. Time Warner Cable Inc., 2019 WL 3812063, at *11–

17 (S.D.N.Y. Aug. 14, 2019) (Oetken, J.), some courts

have certified such classes, and as already explained,

the costs and risks of litigating to that point and beyond are significant. See, e.g., Knapper v. Cox

15 The FCC is at work on a reassigned numbers database that,

once completed, will provide a safe harbor defense for companies

that meet the FCC’s requirements for consulting the database.

See FCC, Wireline Competition Bureau and Consumer and Governmental Affairs Bureau Seek Comment on Technical Requirements for Reassigned Numbers Database, DA 20-105 (Jan. 24,

2020); cf. FCC, Consumer and Governmental Affairs Bureau Establishes Guidelines for Operation of The Reassigned Numbers

Database, DA 20-423 (Apr. 16, 2020) (latest FCC update on database; offering only three pages of guidance). The FCC also has

yet to resolve the question of what standard applies to reassigned

calls made prior to the completion of the database. It previously

recognized a one call safe harbor, but the D.C. Circuit struck that

provision down in ACA Int’l, 885 F.3d at 705–06, and the FCC

has yet to issue new guidance on the question.

Commc’ns, Inc., 329 F.R.D. 238, 247 (D. Ariz. 2019)

(certifying class).16

The situation of healthcare benefits companies

like amici is instructive because healthcare companies

have defenses and related additional grounds for opposing certification that others do not. For example,

the McCarran Ferguson Act preempts the TCPA

where it impairs state law as it does in many states.

Further, the TCPA exempts calls made “for emergency purposes,” which the FCC defines “broadly rather than narrowly” consistent “with the legislative

history and the intent of the TCPA.” 47 U.S.C.

§ 227(b)(1)(A); In the Matter of the TCPA of 1991, 7

FCC Rcd. 2738, 2753 (1992) (“1992 Order”) (proposing

exemption).17 And as indicated above, other TCPA defendants also face disputed issues of consent and revocation of consent that amici do not.

16 See also Abdeljali v. Gen. Electric Capital Corp., 306 F.R.D.

303 (S.D. Cal. 2015); Johnson v. Navient Sols, Inc., 315 F.R.D.

501 (S.D. Ind. 2016); Krakauer v. DISH Network L.L.C., 311

F.R.D. 384 (M.D.N.C. 2015); Brown v. DirecTV, LLC, 330 F.R.D.

260 (C.D. Cal. 2019); West v. California Servs. Bureau, Inc., 323

F.R.D. 295 (N.D. Cal. 2017) (certifying such classes).

17 The emergency exemption includes “calls made necessary in

any situation affecting the health and safety of consumers.” 1992

Order, 7 FCC Rcd. at 2753; 47 C.F.R. § 64.1200(f)(4). This “include[s] situations in which it is in the public interest to convey

information to consumers concerning health or safety, whether

or not the event was anticipated or could have been anticipated.”

1992 Order, 7 FCC Rcd. at 2738. The FCC by regulation has

provided a separate exception for certain health-care messages

that meet seven particular requirements. See 2015 Order, 30

FCC Rcd. at 8031–32 (listing types of calls and conditions), aff’d

in part by ACA Int’l, 885 F.3d at 710–14.

But these defenses often do not allow healthcare

or other companies to obtain dismissal of the named

plaintiffs’ claims at the pleading stage, and as noted,

certain of the defenses do not apply outside the healthinsurance industry. And as those cases head into discovery and class certification, the cost of fighting them

is millions of dollars and thousands of hours diverted

from amici’s healthcare mission and the mission of

various other companies. This cost multiplies when

summed across the healthcare industry at large. Ultimately, these costs must be borne by all members

and increase the cost of healthcare to all Americans.

Rejection of the Ninth Circuit’s position will not

definitively end the problem. For example, this petition does not implicate the prohibition on prerecorded

messages without prior consent or other provisions. It

will, however, eliminate an interpretation that deters

protected speech, increases healthcare costs, and

threatens companies throughout the country with

enormous unwarranted liability that goes far beyond

what Congress intended.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

M AXWELL V. P RITT

Counsel of Record

B OIES S CHILLER

F LEXNER LLP

44 Montgomery Street,

41st Floor

San Francisco, CA 94104

(415) 293-6800

mpritt@bsfllp.com

S HIRA R. L IU

B OIES S CHILLER

F LEXNER LLP

725 S. Figueroa Street,

31st Floor

Los Angeles, CA 90017

sliu@bsfllp.com

S AMUEL C. K APLAN

B OIES S CHILLER

F LEXNER LLP

1401 New York Avenue,

N.W.

Washington, D.C. 20005

skaplan@bsfllp.com

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.