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

No. 19-511

===================================================================

In The

Supreme Court of the United States

---------------------------------♦---------------------------------

FACEBOOK, INC., PETITIONER

v.

NOAH DUGUID, INDIVIDUALLY AND ON BEHALF OF

HIMSELF AND ALL OTHERS SIMILARLY SITUATED,

AND UNITED STATES OF AMERICA

---------------------------------♦--------------------------------ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

---------------------------------♦---------------------------------

BRIEF FOR RETAIL LITIGATION CENTER, INC.,

NATIONAL RETAIL FEDERATION, AND

RESTAURANT LAW CENTER AS AMICI

CURIAE SUPPORTING PETITIONER

---------------------------------♦--------------------------------DEBORAH R. WHITE

KATHLEEN F. MCGUIGAN

RETAIL LITIGATION CENTER, INC.

99 M St. SE, Suite 700

Washington, DC 20003

Counsel for Retail Litigation

Center, Inc.

STEPHANIE A. MARTZ

NATIONAL RETAIL FEDERATION

1101 New York Ave. NW,

Suite 1200

Washington, DC 20005

Counsel for National Retail

Federation

JOSEPH R. PALMORE

Counsel of Record

SAMUEL B. GOLDSTEIN

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave. NW

Washington, DC 20006

(202) 887-6940

JPalmore@mofo.com

MEREDITH C. SLAWE

MICHAEL W. MCTIGUE JR.

COZEN O’CONNOR

One Liberty Pl.

1650 Market St., Suite 2800

Philadelphia, PA 19103

Counsel for Amici Curiae

ANGELO I. AMADOR

RESTAURANT LAW CENTER

2055 L St. NW, Suite 700

Washington, DC 20036

Counsel for Restaurant Law Center

SEPTEMBER 11, 2020

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

5

ARGUMENT ........................................................

8

I.

THE NINTH CIRCUIT’S ERRONEOUS

READING OF THE ATDS DEFINITION

HAS SIGNIFICANT ADVERSE CONSEQUENCES .................................................

8

A. The Ninth Circuit’s Atextual ATDS

Interpretation Expands The TCPA’s

Scope To Include Business Communications Valued By Consumers ............. 10

B. The Ninth Circuit’s ATDS Interpretation Fuels Abusive And Counterproductive TCPA Litigation ................ 14

C. The Ninth Circuit’s ATDS Interpretation Prompts Lawsuits Over Valuable

Communications .................................. 19

D. The Ninth Circuit’s ATDS Interpretation Discourages Communications

Consumers Want ................................. 21

E. The Ninth Circuit’s ATDS Interpretation Is Not Necessary To Protect

Consumers From Robocalls ................. 27

II.

THE NINTH CIRCUIT’S INTERPRETATION

OF THE ATDS PROVISION IS WRONG

AND SHOULD BE OVERTURNED ............. 29

CONCLUSION..................................................... 32

ii

TABLE OF AUTHORITIES

Page

CASES

ACA Int’l v. FCC,

885 F.3d 687 (D.C. Cir. 2018) ............................ 24, 31

Alan v. BrandRep, Inc.,

No. 16-cv-1040 (C.D. Cal. Aug. 5, 2016) ..................16

Allan v. Pa. Higher Educ. Assistance Agency,

968 F.3d 567 (6th Cir. 2020) ................................ 9, 10

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

140 S. Ct. 2335 (2020) ........................... 5, 7, 9, 27, 29

Blow v. Bijora, Inc.,

855 F.3d 793 (7th Cir. 2017) .............................. 20, 22

Breda v. Cellco P’ship,

934 F.3d 1 (1st Cir. 2019) ........................................22

Bridgeview Health Care Ctr., Ltd. v. Clark,

816 F.3d 935 (7th Cir. 2016) ....................................15

C-Mart, Inc. v. Metro. Life Ins. Co.,

No. 13-cv-80561, 2014 WL 12300313 (S.D.

Fla. July 14, 2014) ...................................................18

Castillo v. Caesars Entm’t Corp.,

No. 18-cv-2297, 2019 WL 4855353 (D. Nev.

Sept. 30, 2019) .........................................................21

Dominguez v. Yahoo, Inc.,

894 F.3d 116 (3d Cir. 2018) .....................................30

Duran v. La Boom Disco, Inc.,

955 F.3d 279 (2d Cir. 2020) .......................................9

iii

TABLE OF AUTHORITIES—Continued

Page

Emanuel v. Los Angeles Lakers, Inc.,

No. 12-cv-9936, 2013 WL 1719035

(C.D. Cal. Apr. 18, 2013) ..........................................20

Epps v. Earth Fare, Inc.,

No. 16-cv-8221, 2017 WL 1424637

(C.D. Cal. Feb. 27, 2017) ..........................................17

Epps v. Gap, Inc.,

No. 17-cv-3424 (C.D. Cal. filed May 5, 2017) ..........17

Flores v. Access Ins. Co.,

No. 15-cv-2883, 2017 WL 986516

(C.D. Cal. Mar. 13, 2017) .........................................23

Flores v. Papa John’s USA, Inc.,

No. 20-cv-1672 (C.D. Cal. Feb. 20, 2020).................21

Gadelhak v. AT&T Servs., Inc.,

950 F.3d 458 (7th Cir. 2020) .............................. 30, 31

Garcia v. Credit One Bank, N.A.,

No. 18-cv-191, 2020 WL 4431679

(D. Nev. July 31, 2020) ............................................16

Glasser v. Hilton Grand Vacations Co.,

948 F.3d 1301 (11th Cir. 2020) .............. 27, 30, 31, 32

Kinder v. Allied Interstate, Inc.,

No. E047086, 2010 WL 2993958

(Cal. Ct. App. Aug. 2, 2010) .....................................17

Kolinek v. Walgreen Co.,

311 F.R.D. 483 (N.D. Ill. 2015) ................................20

Konopca v. Macy’s Inc.,

No. 15-cv-1547 (D.N.J. Feb. 20, 2017) .....................17

iv

TABLE OF AUTHORITIES—Continued

Page

LaGuardia v. Designer Brands, Inc.,

No. 19-cv-1568, 2020 WL 2463385

(S.D. Cal. May 7, 2020) ............................................15

Lindenbaum v. CVS Health Corp.,

No. 17-cv-1863, 2018 WL 501307

(N.D. Ohio Jan. 22, 2018) .................................. 19, 20

Lowe v. CVS Pharm., Inc.,

No. 14-cv-3687 (N.D. Ill. filed May 20, 2014) ..........20

Marks v. Crunch San Diego, LLC,

904 F.3d 1041 (9th Cir. 2018) ........................ 9, 30, 31

Meyer v. Bebe Stores, Inc.,

No. 14-cv-267, 2015 WL 431148

(N.D. Cal. Feb. 2, 2015)............................................23

Osorio v. State Farm Bank, F.S.B.,

746 F.3d 1242 (11th Cir. 2014) ................................22

Rando v. Edible Arrangements Int’l, LLC,

No. 17-cv-701, 2018 WL 1523858

(D.N.J. Mar. 28, 2018) ..............................................17

Reliable Money Order, Inc. v.

McKnight Sales Co.,

704 F.3d 489 (7th Cir. 2013) ....................................18

Rooney v. Rite Aid Headquarters Corp.,

No. 14-cv-1249 (S.D. Cal. filed May 20, 2014) ........20

Schweitzer v. Comenity Bank,

866 F.3d 1273 (11th Cir. 2017) ................................22

Stoops v. Wells Fargo Bank, N.A.,

197 F. Supp. 3d 782 (W.D. Pa. 2016) ........... 16, 25, 26

v

TABLE OF AUTHORITIES—Continued

Page

Ulery v. AT&T Mobility Servs., LLC,

No. 20-cv-2354 (D. Colo. Aug. 7, 2020) ....................13

Weed v. SunTrust Bank,

No. 17-cv-3547, 2018 WL 2100590

(N.D. Ga. May 7, 2018) ............................................22

STATUTES AND REGULATIONS

15 U.S.C. § 1692c(c).....................................................29

16 C.F.R. § 310.4(b)(1)(iii) ...........................................28

16 C.F.R. § 310.4(b)(1)(v)(A) .......................................28

16 C.F.R. § 310.4(c) .....................................................29

47 C.F.R. § 64.1200(a)(2) .............................................23

47 C.F.R. § 64.1200(f )(8)(i)(A) ....................................23

47 U.S.C. § 227(a)(1) ............................................... 9, 30

47 U.S.C. § 227(b)(1)(A) .............................. 9, 22, 28, 29

47 U.S.C. § 227(b)(1)(A)(iii) ...........................................9

47 U.S.C. § 227(b)(3)(B) ..............................................14

47 U.S.C. § 227(c) ........................................................28

47 U.S.C. § 227(c)(1)(A) ...............................................28

N.Y. Gen. Bus. Law § 399-z(9) ....................................29

vi

TABLE OF AUTHORITIES—Continued

Page

Pallone-Thune Telephone Robocall Abuse

Criminal Enforcement and Deterrence Act,

Pub. L. No. 116-105, 133 Stat. 3274 (Dec. 30,

2019) ........................................................................28

OTHER AUTHORITIES

137 Cong. Rec. 30,821 (1991) ......................................14

Advanced Methods to Target & Eliminate

Unlawful Robocalls, 33 FCC Rcd. 12,024

(2018) .......................................................................24

Alanna Quillen, Your Next Visit to the Dentist

Will Feel Different Due to Protections Against

COVID-19, NBC DFW (May 11, 2020),

https://www.nbcdfw.com/news/local/how-yournext-visit-to-the-dentist-will-feel-different/

2367211 ...................................................................11

Bank of America, Set Up Custom Alerts,

https://www.bankofamerica.com/online-banking/

mobile-and-online-banking-features/managealerts (last visited July 27, 2020) ...........................13

Bed Bath & Beyond, How Curbside Pickup Works,

https://www.bedbathandbeyond.com/store/

static/curbside (last visited July 27, 2020) .............13

Carlene Reyes, Texting for Education: Why

Schools Are Turning to SMS, Zipwhip (July

17, 2020), https://www.zipwhip.com/blog/smssoftware-for-schools.................................................11

vii

TABLE OF AUTHORITIES—Continued

Page

Consumer and Governmental Affairs Bureau

Announces Compliance Date for Reassigned

Numbers Database Rules, CG Docket No.

17-59 (FCC July 2, 2020) .................................. 24, 25

Danny Klein, Post-Coronavirus: A Changed

Restaurant Customer with New Expectations,

FSR Mag., https://www.fsrmagazine.com/

consumer-trends/post-coronavirus-changedrestaurant-customer-new-expectations (June

2020) .................................................................. 12, 13

H.R. Rep. No. 102-317 (1991) .....................................21

Jessica Karmasek, Filing TCPA Lawsuits: ‘It’s

What I Do,’ Says Professional Plaintiff with

35 Cell Phones, Forbes (Aug. 25, 2016),

https://www.forbes.com/sites/legalnewsline/

2016/08/25/filing-tcpa-lawsuits-its-what-i-dosays-professional-plaintiff-with-35-cell-phones ......26

Jo-Ann Fabric and Craft Stores, JoAnn2Go

Messages, https://www.joann.com/sms-terms.html

(last visited July 27, 2020) ......................................12

John O’Brien, Phoney Lawsuits: Man Has Filed

80 Lawsuits and Uses Sleuthing Skills to

Track Down Defendants, Forbes (Nov. 1, 2017),

https://www.forbes.com/sites/legalnewsline/

2017/11/01/phoney-lawsuits-man-has-filed-80lawsuits-and-uses-sleuthing-skills-to-trackdown-defendants .....................................................26

viii

TABLE OF AUTHORITIES—Continued

Page

Justin (Gus) Hurwitz, Telemarketing, Technology, and the Regulation of Private Speech:

First Amendment Lessons from the FCC’s

TCPA Rules, 84 Brook. L. Rev. 1 (2018)..................19

Letter from Abercrombie & Fitch Co., CG

Docket No. 02-278 (FCC May 13, 2015) .................26

Macy’s, How Can I Sign Up for Delivery Text Notifiations?, https://www.customerservice-macys.com/

app/answers/list/c/3 (last visited July 27,

2020) ........................................................................12

Petition of SUMOTEXT Corp. for Expedited

Clarification or, in the Alternative, Declaratory

Ruling, CG Docket No. 02-278 (FCC Sept. 3,

2015) ........................................................................17

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 18 FCC Rcd.

14,014 (2003) .............................................................9

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 27 FCC Rcd. 1830

(2012) ....................................14, 18, 19, 22, 23, 24, 25

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 30 FCC Rcd. 7961

(2015) .........................................................................8

S. Rep. No. 102-178 (1991) ..........................................31

Starbucks, When Will I Receive Special Offers and

Discounts?, https://customerservice.starbucks.com/

app/answers/detail/a_id/1883/kw/discount (last

updated Aug. 11, 2017) ...........................................11

ix

TABLE OF AUTHORITIES—Continued

Page

Stuart L. Pardau, Good Intentions and the Road

to Regulatory Hell: How the TCPA Went from

Consumer Protection Statute to Litigation

Nightmare, 2018 U. Ill. J.L. Tech. & Pol’y 313 .... 15, 16

Subway, Rewards & Deals, https://www.subway.com/

en-US/Promotions (last visited Aug. 24, 2020) ......11

U.S. Chamber Inst. for Legal Reform, TCPA

Litigation Sprawl, A Study of the Sources and

Targets of Recent TCPA Lawsuits (2017) ...............15

Walgreens, Rx Text Alerts, https://www.walgreens.

com/topic/pharmacy/text-alerts.jsp (last visited

Aug. 5, 2020) ............................................................12

WebRecon LLC, WebRecon Stats for Dec 2019

and Year in Review (Jan. 28, 2020),

https://webrecon.com/webrecon-stats-for-dec2019-and-year-in-review-how-did-your-favoritestatutes-fare ............................................................15

BRIEF FOR RETAIL LITIGATION CENTER, INC.,

NATIONAL RETAIL FEDERATION, AND

RESTAURANT LAW CENTER AS AMICI

CURIAE SUPPORTING PETITIONER

The Retail Litigation Center, Inc., the National

Retail Federation, and the Restaurant Law Center

respectfully submit this brief as amici curiae in support of petitioner.1

INTEREST OF AMICI CURIAE

The Retail Litigation Center, Inc. (“RLC”) is the

only trade organization solely dedicated to representing the retail industry in the courts. The RLC’s members include many of the country’s largest and most

innovative retailers. Collectively, they employ millions

of workers throughout the United States, provide

goods and services to tens of millions of consumers, and

account for tens of billions of dollars in annual sales.

The RLC seeks to provide courts with retail-industry

perspectives on important legal issues impacting its

members, and to highlight the potential industry-wide

consequences of significant pending cases. Since its

founding in 2010, the RLC has participated as an

amicus in more than 150 judicial proceedings of

importance to retailers. Its amicus briefs have been

1

No counsel for a party authored this brief in whole or in

part, and no person other than amici or their counsel made a monetary contribution to its preparation or submission. Counsel of

record for all parties received notice before the due date of the

intention of amici to file this brief. All parties have consented to

the filing of this brief.

2

favorably cited by multiple courts, including this

Court. See, e.g., South Dakota v. Wayfair, Inc., 138

S. Ct. 2080, 2097 (2018); Kirtsaeng v. John Wiley &

Sons, Inc., 568 U.S. 519, 542 (2013).

The National Retail Federation (“NRF”) is the

world’s largest retail trade association, representing

discount and department stores, home goods and specialty stores, Main Street merchants, grocers, wholesalers, chain restaurants, and internet retailers from

the United States and more than 45 countries. NRF

empowers the industry that powers the economy.

Retail is the nation’s largest private-sector employer,

contributing $3.9 trillion to annual GDP and supporting one in four U.S. jobs—52 million working Americans. For over a century, NRF has been a voice for

every retailer and every retail job, educating and communicating the powerful impact retail has on local

communities and global economies. NRF regularly

submits amicus curiae briefs in cases raising significant legal issues for the retail community.

The Restaurant Law Center is a public policy

organization affiliated with the National Restaurant

Association, the largest foodservice trade association

in the world. This labor-intensive industry is comprised of over one million restaurants and other

foodservice outlets employing 15 million people—

approximately 10 percent of the U.S. workforce. Restaurants and other foodservice providers are the

nation’s second-largest private-sector employers.

Through amicus participation, the Restaurant Law

3

Center provides courts with the industry’s perspective

on legal issues that have the potential to significantly

impact its members and their industry. One critical

issue for the industry is the proper interpretation and

application of the Telephone Consumer Protection Act,

47 U.S.C. § 227 et seq. (“TCPA”), which regulates all

businesses that communicate with customers by phone

or text messages. Such communications are commonplace and essential in the foodservice industry and provide a range of welcome benefits to consumers and

time-sensitive information to industry employees and

others. The Restaurant Law Center’s amicus briefs

have been cited favorably by state and federal courts,

most recently by the majority in an Eleventh Circuit

en banc decision. See Lewis v. Governor of Ala.,

944 F.3d 1287, 1303 n.15 (11th Cir. 2019) (en banc).

Amici and their members have a significant interest in the outcome of this case. Many of amici’s members communicate with their customers by phone and

text message. Consumers value and affirmatively seek

out those communications. But amici’s members have

increasingly found themselves the targets of abusive

TCPA litigation, much of it brought by professional

plaintiffs and counsel who have advocated for and

exploited an expansive interpretation of an “automatic

telephone dialing system” (“ATDS”). That interpretation sweeps in communications that have never been

considered “robocalls.”

4

This case will directly impact the volume and

nature of TCPA litigation faced by amici’s members.

The statutory definition of an ATDS plays a critical

gate-keeping role in the TCPA’s liability scheme. Yet

the Ninth Circuit adopted an interpretation of the

ATDS provision that departs from the statute’s text

and arguably encompasses virtually all modern phone

technology, regardless of its connection to the technology Congress sought to limit. That interpretation has

opened the floodgates for an onslaught of class action

TCPA lawsuits against legitimate businesses engaging

in important communications with their customers

and caused a torrent of pre-litigation demand letters

threatening TCPA class actions absent prompt settlement. The environment created by this interpretation

compels retailers and restaurants to choose between

forgoing communications valued by consumers or

exposing themselves to potentially crushing TCPA

liability given the statutory damages framework.

Amici and their members thus will be directly and

significantly affected by this Court’s decision in this

case.

5

INTRODUCTION AND

SUMMARY OF ARGUMENT

“Americans passionately disagree about many

things,” but “they are largely united in their disdain for

robocalls.” Barr v. Am. Ass’n of Pol. Consultants, Inc.,

140 S. Ct. 2335, 2343 (2020) (plurality opinion). Congress enacted the TCPA in 1991 in response to “a

torrent of vociferous consumer complaints about

intrusive robocalls” that “wake us up in the morning”

and “interrupt our dinner at night.” Id. at 2344 (quoting 137 Cong. Rec. 30,821 (1991) (statement of Sen.

Hollings)).

This case, however, is not about the “robocalls”

that Congress intended to curb when it tied the TCPA’s

restriction to an ATDS that continually generates

random or sequential phone numbers—like a casino

slot machine—until it hits a “jackpot” and delivers a

generic solicitation to the unwitting person who

answers the phone. Instead, the decision below sweeps

in important communications that consumers want

and need, like appointment reminders, order confirmations, shipping and delivery notifications, curbside

pickup information, prescription refill reminders, promotional messages from familiar businesses, customer

service and satisfaction surveys, loyalty program

alerts, and security notifications.

Challenges to these types of valued and expected

communications are not what makes the TCPA popular with consumers. But the potential for such lawsuits has made the statute popular with a group of

6

plaintiffs’ class action lawyers and professional TCPA

plaintiffs who have been enriched at the expense of

businesses and consumers. Today, the statute is primarily used not to challenge the robocalls that Congress intended to curb, but instead as a vehicle to

leverage fees from legitimate businesses seeking to

engage with their own customers using modern technology.

The Ninth Circuit’s interpretation here conflates

these valued communications with the pernicious

robocalls that Congress intended to control. According

to the Ninth Circuit (and other courts following its

approach), virtually all technology capable of storing

and automatically dialing telephone numbers might

be an ATDS. That means that every call from such

devices potentially subjects the caller to statutory

damages under the TCPA.

This interpretation untethers the TCPA from the

kind of indiscriminate robocalling technology it was

intended to regulate. As a result, businesses must use

more expensive and slower methods to convey basic

information to their customers. Some conscientious

retailers and restaurants trying to follow the law—

particularly small and risk-averse businesses—may

cease sending communications that the vast majority

of their customers desire rather than risk facing abusive TCPA class action lawsuits. Indeed, some already

have. Additionally, applying a consent procedure

intended for robocalls using ATDS technology to normal business-customer communications can cause

7

confusion, since customers may think they are agreeing to receive unsolicited robocalls. These consequences hurt consumers—a result Congress never

intended.

Retailers and restaurants share consumers’ frustration with illegal and unwanted robocalls. These

robocalls distract consumers from commercial communications they do want. And robocallers often engage

in spoofing activities that mimic the telephone numbers of family, friends, and legitimate businesses, fostering consumer confusion and damaging businesses’

reputations.

Nonetheless, the Ninth Circuit’s atextual view of

the ATDS definition is not the solution to the robocall

problem, and consumers would not be “bombarded

every day with nonstop robocalls” if this Court rejects

it. AAPC, 140 S. Ct. at 2356. Retailers and restaurants (like other legitimate businesses) have no desire,

and no incentive, to alienate their customers by engaging in the unwanted and intrusive practices that motivated the TCPA’s enactment. Just the opposite.

Indeed, other statutory and regulatory guardrails

protect consumers from unwanted calls. For instance,

the TCPA’s separate prohibitions on calls placed using

an artificial or prerecorded voice and calls to numbers

on the National Do Not Call Registry safeguard consumers from unwanted telephone solicitations. And

the FCC has ample tools to address spoofing, indiscriminate dialing, and other egregious practices.

8

Overturning the Ninth Circuit’s view would restore

the TCPA to its intended scope: to reach equipment

with random or sequential number generation functionality. This result would allow consumers to receive

information they want and provide predictability to

companies seeking to send valued communications.

And it would halt the transformation of the TCPA

“from a statutory rifle-shot targeting specific companies that market their services through automated

random or sequential dialing into an unpredictable

shotgun blast covering virtually all communications

devices.” Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8075

(2015) (“2015 FCC Order”) (Pai, Comm’r, dissenting).

This Court should reverse.

ARGUMENT

I.

THE NINTH CIRCUIT’S ERRONEOUS

READING OF THE ATDS DEFINITION HAS

SIGNIFICANT ADVERSE CONSEQUENCES

The Ninth Circuit’s incorrect interpretation of the

statutory ATDS definition sweeps valuable consumer

communications not targeted by Congress into the

TCPA’s liability net. Businesses today are threatened

with massive damages for trying to provide their customers with information that bears no resemblance

to the randomly or sequentially generated calls that

motivated the TCPA’s passage. As a result, transmission of information that consumers want and need is

being chilled and punished by crippling classwide statutory damages.

9

These adverse consequences flow from the misinterpretation of the ATDS definition, which plays a central role in the TCPA’s operation. Specifically, the

TCPA generally makes it unlawful “to make any call

* * * using any automatic telephone dialing system” to

any cellular telephone. 47 U.S.C. § 227(b)(1)(A).2 That

prohibition excepts only “call[s] made for emergency

purposes” and calls “made with the prior express consent of the called party.” Ibid.3 The TCPA in turn

defines an ATDS 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.” Id. § 227(a)(1).

The Ninth Circuit reads the ATDS definition to

include any device that “merely ha[s] the capacity to

‘store numbers to be called’ and ‘to dial such numbers

automatically.’ ” Pet. App. 6 (quoting Marks v. Crunch

San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018)).

The Second and Sixth Circuits later adopted the Ninth

Circuit’s reading. Duran v. La Boom Disco, Inc.,

955 F.3d 279, 287 (2d Cir. 2020); Allan v. Pa. Higher

2

The Federal Communications Commission (“FCC”) has

interpreted “call[s]” to include text messages. AAPC, 140 S. Ct.

at 2344 n.1 (citing Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 18 FCC Rcd. 14,014, 14,115 (2003)).

3

The automated-call prohibition also contains an exception

for calls “made solely to collect a debt owed to or guaranteed by

the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). But this Court

recently invalidated that exception as violating the First Amendment. AAPC, 140 S. Ct. at 2356.

10

Educ. Assistance Agency, 968 F.3d 567, 580 (6th Cir.

2020).

As described below, that interpretation misreads

the statute, and the TCPA’s consent defense does not

offset the error. But amici start by discussing the tremendous practical harm caused by the Ninth Circuit’s

erroneous reading of the statutory ATDS definition.

A. The Ninth Circuit’s Atextual ATDS

Interpretation Expands The TCPA’s Scope

To Include Business Communications

Valued By Consumers

Today, calls and texts to consumers from businesses and other organizations are integral to our

daily routines. To provide these valuable communications to consumers, many businesses rely on modern

technology that may store and automatically dial

curated lists of mobile numbers—a function that is

distinctly different from randomly generating numbers. Given the size and footprint of amici’s businesses, these business-consumer communications are

not feasible without some technology. Moreover, such

communications have become increasingly important

in the current public-health emergency, as businesses

(including retailers and restaurants) and consumers

alike seek to minimize face-to-face interactions. Consider a week in the life of a hypothetical consumer

named Claire:

•

On Monday, Claire wakes up to a text message

from her son’s school with a list of the remotelearning lessons planned for that day. See

11

Carlene Reyes, Texting for Education: Why

Schools Are Turning to SMS, Zipwhip (July

17, 2020), https://www.zipwhip.com/blog/smssoftware-for-schools.

•

Tuesday morning, Claire receives a text message from her dentist, reminding her of an

upcoming appointment and informing her of

the office’s screening procedures and safety

precautions. When arriving for her appointment, she waits in her car until she receives

another text telling her to enter the dentist’s

office. See Alanna Quillen, Your Next Visit to

the Dentist Will Feel Different Due to Protections Against COVID-19, NBC DFW (May 11,

2020), https://www.nbcdfw.com/news/local/howyour-next-visit-to-the-dentist-will-feel-different/

2367211.

•

That afternoon, Claire gets a text message

from her local coffee shop with a buy-one-getone-free coupon, as well as a text message

from her usual lunch spot with a discount offer.

E.g., Starbucks, When Will I Receive Special

Offers and Discounts?, https://customerservice.

starbucks.com/app/answers/detail/a_id/1883/

kw/discount (last updated Aug. 11, 2017);

Subway, Rewards & Deals, https://www.

subway.com/en-US/Promotions (last visited

Aug. 24, 2020).

•

On Wednesday, Claire receives a text message from her pharmacy, reminding her to

refill a prescription and notifying her that

another prescription is ready for pickup. E.g.,

12

Walgreens, Rx Text Alerts, https://www.

walgreens.com/topic/pharmacy/text-alerts.jsp

(last visited Aug. 5, 2020).

•

During lunch on Thursday, Claire receives a

text message confirming her order of a gift for

her friend, providing tracking information for

the shipment, telling her how many loyalty

points she earned, and notifying her of an

upcoming sale. E.g., Macy’s, How Can I Sign

Up for Delivery Text Notifications?, https://www.

customerservice-macys.com/app/answers/list/

c/3 (last visited July 27, 2020); Jo-Ann Fabric

and Craft Stores, JoAnn2Go Messages,

https://www.joann.com/sms-terms.html (last

visited July 27, 2020).

•

Later that day, Facebook automatically texts

Claire that a new device is attempting to

access her account. She does not recognize

the device, so she changes her password and

secures her account using the instructions in

the notification. See Pet. App. 5.

•

After logging off her work computer Friday

evening, Claire calls and orders food from her

favorite Italian restaurant. She heads over to

the restaurant’s parking lot and avoids waiting

for her food in the foyer. Instead, she receives

an “order ready” text while in the parking lot

telling her to pull up for her order, which is

placed contactless in the back seat. See, e.g.,

Danny Klein, Post-Coronavirus: A Changed

Restaurant Customer with New Expectations,

FSR Mag., https://www.fsrmagazine.com/

13

consumer-trends/post-coronavirus-changedrestaurant-customer-new-expectations (June

2020).

•

On Saturday, Claire orders a stand mixer for

her weekend baking project. A few hours

later, she receives a text message from the

store notifying her that her purchase is ready

for curbside pickup. See, e.g., Bed Bath &

Beyond, How Curbside Pickup Works,

https://www.bedbathandbeyond.com/store/static/

curbside (last visited July 27, 2020).

•

Sunday afternoon, Claire receives a text message from her bank about suspected unauthorized use of her account. E.g., Bank of

America, Set Up Custom Alerts, https://www.

bankofamerica.com/online-banking/mobile-andonline-banking-features/manage-alerts (last

visited July 27, 2020).

•

That night, Claire receives a text message

from her employer providing new COVID-19

employee safety protocols. Ulery v. AT&T

Mobility Servs., LLC, No. 20-cv-2354 (D. Colo.

Aug. 7, 2020), ECF No. 1.

Americans rely on countless communications like

these, and they typically begin with “stor[ing] numbers

to be called” and “dial[ing] such numbers automatically.” The Ninth Circuit’s interpretation threatens to

transform them into calls made by an ATDS and thus

potential TCPA violations.

14

B. The Ninth Circuit’s ATDS Interpretation Fuels Abusive And Counterproductive TCPA Litigation

Plaintiffs’ lawyers have exploited courts’ atextual

ATDS interpretations, together with the TCPA’s

uncapped statutory damages and private right of

action provisions, to target communications very different from the robocalls that motivated the TCPA’s

enactment. As a result, compliance-minded retailers

and restaurants are vulnerable to abusive TCPA class

actions and pre-litigation settlement demands no matter what calling or texting technology they use.

When Congress enacted the TCPA in 1991, it

intended to allow individual consumers to vindicate

their rights and recover small sums in small claims

courts without the assistance of lawyers. See 137 Cong.

Rec. 30,821 (statement of Sen. Hollings) (“Small claims

court or a similar court would allow the consumer to

appear before the court without an attorney.”). The

TCPA thus provides statutory damages of $500 for

each violation, and up to three times that amount for

willful violations. 47 U.S.C. § 227(b)(3)(B). This damages amount was “set to be fair to both the consumer

and the telemarketer.” 137 Cong. Rec. 30,821.

But what was originally meant to be a shield for

consumers has become a sword for lawyers. Indeed,

“the TCPA has become the poster child for lawsuit

abuse.” 2015 FCC Order, 30 FCC Rcd. at 8073 (Pai,

Comm’r, dissenting). The number of new TCPA cases

filed each year has skyrocketed from 14 in 2007 to

15

more than 3,000 in 2019. Stuart L. Pardau, Good

Intentions and the Road to Regulatory Hell: How the

TCPA Went from Consumer Protection Statute to Litigation Nightmare, 2018 U. Ill. J.L. Tech. & Pol’y 313, 322;

WebRecon LLC, WebRecon Stats for Dec 2019 and Year

in Review (Jan. 28, 2020), https://webrecon.com/webreconstats-for-dec-2019-and-year-in-review-how-did-yourfavorite-statutes-fare.

Rather than seeking to redress the genuine consumer grievances the TCPA was enacted to address,

many of these lawsuits are built solely to extract

money from businesses. Indeed, much litigation under

the TCPA is brought by professional plaintiffs and

counsel who specialize in manufacturing and magnifying potential liability. Bridgeview Health Care Ctr.,

Ltd. v. Clark, 816 F.3d 935, 941 (7th Cir. 2016) (observing that TCPA litigation “has blossomed into a national

cash cow for plaintiff ’s attorneys” (internal quotation

marks omitted)). TCPA actions are often “attorney

driven.” LaGuardia v. Designer Brands, Inc., No.

19-cv-1568, 2020 WL 2463385, at *8 (S.D. Cal. May 7,

2020). Just 44 law firms filed over 1,800 TCPA lawsuits in a recent 17-month period—about 60% of all

TCPA cases filed during that time. U.S. Chamber Inst.

for Legal Reform, TCPA Litigation Sprawl: A Study of

the Sources and Targets of Recent TCPA Lawsuits 11

(2017). And the recoveries in these lawsuits largely

redound to the benefit of plaintiffs’ attorneys rather

than the consumers they purport to represent. As of

late 2016, TCPA class members received an average of

16

$4.12, while the average take-home for TCPA plaintiffs’ lawyers was $2.4 million. Pardau, supra, at 322.

TCPA plaintiffs’ firms and professional litigants

use a variety of tactics to manufacture claims of noncompliance:

•

Buying dozens of cell phones and requesting

area codes for regions where debt collection

calls are common. See Stoops v. Wells Fargo

Bank, N.A., 197 F. Supp. 3d 782, 798-99, 801

(W.D. Pa. 2016); see also infra pp. 25-26.

•

Repeatedly purchasing pre-paid phone

minutes to keep receiving phone calls. See

Garcia v. Credit One Bank, N.A., No. 18-cv191, 2020 WL 4431679, at *3 (D. Nev. July 31,

2020) (“Instead of taking the steps necessary

to stop the alleged injury (the unwanted

calls),” plaintiff “took steps to allow the continuance of the injury while building a record

to facilitate a later claim”).

•

Publishing phone numbers on multiple online

directories to induce businesses to place allegedly unwanted calls. Cross-Complaint at 12,

Alan v. BrandRep, Inc., No. 16-cv-1040 (C.D.

Cal. Aug. 5, 2016), ECF No. 9 (plaintiff “was

operating an active ongoing business or fake

business listed with his phone numbers * * *

in order to lobby calls to his cell phone so that

he may subsequently misrepresent that he

never gave consent to call his phone in order

to make out a private right of action under the

TCPA and/or DNC”).

17

•

Hiring staff to log calls in order to file hundreds of suits. See Kinder v. Allied Interstate,

Inc., No. E047086, 2010 WL 2993958, at *1

(Cal. Ct. App. Aug. 2, 2010).

•

Porting a repeating digit phone number from

a landline to a cell phone and making hundreds of thousands of dollars as a result. See

Tr. of Hr’g on Pl.’s Standing at 12:3-5, Konopca

v. Macy’s Inc., No. 15-cv-1547 (D.N.J. Feb. 20,

2017), ECF No. 56.

•

Asking law firm employees to text “JOIN” to

unknown company numbers. Petition of SUMOTEXT Corp. for Expedited Clarification or,

in the Alternative, Declaratory Ruling, CG

Docket No. 02-278, at 4-6 (FCC Sept. 3, 2015).

•

Circumventing the opt-out mechanism of

retail text message programs in order to

revoke consent in a deliberately ineffective

manner. See Epps v. Earth Fare, Inc., No.

16-cv-8221, 2017 WL 1424637, at *2, *5 (C.D.

Cal. Feb. 27, 2017) (defendant’s messages

instructed “Text STOP to end,” but plaintiff

purported to revoke consent by responding,

e.g., “I would appreciate [it] if we discontinue

any further texts”); see also, e.g., Epps v. Gap,

Inc., No. 17-cv-3424 (C.D. Cal. filed May 5,

2017) (similar); Rando v. Edible Arrangements

Int’l, LLC, No. 17-cv-701, 2018 WL 1523858,

at *1-2 (D.N.J. Mar. 28, 2018) (defendant’s

messages instructed to reply “STOP to cancel,” but plaintiff purported to revoke consent

by responding, e.g., “I want to confirm that I

have been removed off your contacts”).

18

•

Soliciting clients using questionable means.

See, e.g., Reliable Money Order, Inc. v. McKnight

Sales Co., 704 F.3d 489, 491-93 (7th Cir. 2013)

(plaintiffs’ firms used a confidential document

produced in one lawsuit to solicit new clients

and file over 100 additional suits); C-Mart,

Inc. v. Metro. Life Ins. Co., No. 13-cv-80561,

2014 WL 12300313, at *1 (S.D. Fla. July 14,

2014) (“[I]t appears that [plaintiff ] is serving

as a pawn for [its law firm’s] class action suit”

because, e.g., plaintiff ’s representative “testified that he has no recollection of receiving the

facsimile at issue in this case” and had “never

even heard of ” defendants).

This state of affairs would have been unimaginable to the Congress that enacted the TCPA several decades ago. Congress set out to enable consumers to

bring individual suits in small claims courts against

unscrupulous telemarketers over unwanted dinnertime phone calls using equipment that autogenerated

and dialed random or sequential telephone numbers.

Thus, the TCPA was intended to cover calls where

there was no connection between the caller and the

recipient. But today, the TCPA instead sustains an

entire industry of serial plaintiffs extracting substantial settlements from legitimate companies under the

threat of crushing class action litigation. The “primary

beneficiaries” of the TCPA now are “trial lawyers, not

the American public.” 2015 FCC Order, 30 FCC Rcd.

at 8073 (Pai, Comm’r, dissenting).

19

C. The Ninth Circuit’s ATDS Interpretation Prompts Lawsuits Over Valuable

Communications

This explosion in TCPA litigation has paralleled

the rise of modern communication technologies far

different from those that motivated the TCPA’s enactment in 1991. Even though many businesses are

attempting to reach only their own customers with

important and beneficial communications similar to

those sent to “Claire” in the examples above, they have

become TCPA defendants simply because those communications involve storing and automatically dialing

mobile numbers. “Rather than focus on the illegal telemarketing calls that consumers really care about,”

TCPA plaintiffs and law firms “target useful communications between legitimate businesses and their customers.” 2015 FCC Order, 30 FCC Rcd. at 8073 (Pai,

Comm’r, dissenting); see also Justin (Gus) Hurwitz,

Telemarketing, Technology, and the Regulation of Private Speech: First Amendment Lessons from the

FCC’s TCPA Rules, 84 Brook. L. Rev. 1, 57-58 (2018)

(“Very frequently this litigation targets firms that are

attempting to engage in legitimate business in compliance with the TCPA.”).

Companies in diverse sectors of the economy have

been targeted by recent TCPA litigation over such valued consumer communications:

•

Pharmacies are frequent targets of TCPA lawsuits for calling or texting their customers to

remind them to pick up their prescriptions or

to consider flu shots. See, e.g., Lindenbaum v.

20

CVS Health Corp., No. 17-cv-1863, 2018 WL

501307 (N.D. Ohio Jan. 22, 2018); Kolinek v.

Walgreen Co., 311 F.R.D. 483 (N.D. Ill. 2015)

($11 million class settlement); Lowe v. CVS

Pharm., Inc., No. 14-cv-3687 (N.D. Ill. filed

May 20, 2014) ($15 million class settlement);

Rooney v. Rite Aid Headquarters Corp., No.

14-cv-1249 (S.D. Cal. filed May 20, 2014).

•

Akira, a Chicago-based apparel retailer, sent

text messages to inform its customers of promotions, discounts, and in-store special

events. Blow v. Bijora, Inc., 855 F.3d 793, 796

(7th Cir. 2017). Customers could opt in to

receive such messages by providing their

phone number to in-store representatives,

texting an opt-in number posted in stores, or

filling out an opt-in card. Ibid. A customer

filed a class action lawsuit against the

retailer, seeking over $1.8 billion in statutory

damages. Id. at 797. After six years of costly

litigation, the retailer prevailed on the ground

that the customer had affirmatively consented to receiving the text messages by texting “AKIRA” to an opt-in number. Id. at

803-05.

•

The Los Angeles Lakers asked fans to send

texts with personalized messages to be displayed on the arena’s jumbotron. Emanuel v.

Los Angeles Lakers, Inc., No. 12-cv-9936, 2013

WL 1719035, at *1 (C.D. Cal. Apr. 18, 2013). A

fan attending a game sent a text message to

the team and received a single text message

confirming that his request had been received.

Ibid. In response, he brought a class action

21

lawsuit against the team under the TCPA.

Ibid.

•

A guest at Caesars Palace hotel provided his

cell phone number to the receptionist while

checking in. Castillo v. Caesars Entm’t Corp.,

No. 18-cv-2297, 2019 WL 4855353, at *1 (D.

Nev. Sept. 30, 2019). Shortly thereafter, he received a text from the hotel’s virtual concierge

service telling him to “[t]ext me for hotel

information, towels, housekeeping requests

and more.” Ibid. Based on that text, he

brought a putative class action lawsuit under

the TCPA. Ibid.

•

A plaintiff consented to receive six text messages each month from Papa John’s, such as

promotional offers and coupon codes. Complaint at 4-6, Flores v. Papa John’s USA, Inc.,

No. 20-cv-1672 (C.D. Cal. Feb. 20, 2020). One

month, Papa John’s allegedly sent him seven

texts, so the plaintiff brought a TCPA class

action lawsuit against the restaurant. Id. at

4, 6-7.

D. The Ninth Circuit’s ATDS Interpretation

Discourages Communications Consumers

Want

Congress did “not intend for th[e] restriction” on

calls using an ATDS “to be a barrier to the normal,

expected or desired communications between businesses and their customers.” H.R. Rep. No. 102-317, at

17 (1991). Yet the Ninth Circuit’s incorrect reading of

the ATDS definition does exactly that—it discourages

22

beneficial communications that consumers want and

expect.

For several reasons, it is no answer that consent

and other defenses exist to TCPA liability. See 47

U.S.C. § 227(b)(1)(A). First, many courts treat consent

as an affirmative defense, e.g., Breda v. Cellco P’ship,

934 F.3d 1, 4 n.4 (1st Cir. 2019), and “[t]he issue of consent is ordinarily a factual issue,” Schweitzer v. Comenity Bank, 866 F.3d 1273, 1280 (11th Cir. 2017). That

means consent may not be a basis for summary judgment, much less dismissal on the pleadings. E.g.,

Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1254

(11th Cir. 2014); Weed v. SunTrust Bank, No. 17-cv3547, 2018 WL 2100590, at *3 (N.D. Ga. May 7, 2018).

Years of discovery and millions of dollars in litigation

expenses may be required before a consent affirmative

defense can dispose of a case that never should have

been initiated because the defendant did not use an

ATDS. See, e.g., Blow, 855 F.3d at 803-05.

Second, plaintiffs’ lawyers often argue that exempt

communications—like prescription notifications, 2015

FCC Order, 30 FCC Rcd. at 8031, and “informational

calls” with oral consent, Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC

Rcd. 1830, 1841 (2012)—should be treated instead as

“dual-purpose calls” on the theory that they are also

“intended to offer property, goods, or services for sale

either during the call, or in the future,” id. at 1842. As

with consent, it may not be possible to defeat such an

argument on the pleadings, even if it lacks merit—thus

requiring years of costly discovery and litigation. See,

23

e.g., Flores v. Access Ins. Co., No. 15-cv-2883, 2017 WL

986516, at *8 (C.D. Cal. Mar. 13, 2017); Meyer v. Bebe

Stores, Inc., No. 14-cv-267, 2015 WL 431148, at *3-4

(N.D. Cal. Feb. 2, 2015).

Third, applying the prior express written consent

requirement for ATDS autogenerated “telemarketing

calls” to routine communications between businesses

and customers discourages consumers from agreeing

to receive communications they value. Under FCC

rules on ATDS communications, such consent

requires express disclosure to consumers that the consented-to calls “will be done with autodialer equipment.” 2015 FCC Order, 30 FCC Rcd. at 8012-13

(emphasis added); see also 47 C.F.R. § 64.1200(a)(2),

(f )(8)(i)(A). The Ninth Circuit’s expansive interpretation of ATDS may compel businesses to give such disclosures merely because they use any technology to call

their customers from a stored list of numbers. But

the required use of the term “autodialer equipment”

when seeking consent may give customers the mistaken impression that they are being solicited to consent to receiving indiscriminate robocalls. Similarly,

consumers who believe they are declining to receive

ATDS autogenerated robocalls are in fact forgoing

expected communications from businesses that use

technology to call from a list of stored numbers.

Fourth, the consent defense often fails to protect

businesses that, reasonably and in good faith, believe

their intended recipient has consented to receive communications. It is more common than this Court might

expect for a consumer to provide her mobile phone

24

number to a business with consent to be contacted, but

for the consented-to calls or texts to be received by

someone else. Sometimes this occurs because the consumer mistakenly provided the wrong number. More

frequently, it happens because the original owner who

consented to contact at that number cancels her phone

service without porting the phone number to a new

mobile service provider. In that situation, the customer’s relinquished phone number is reassigned to

another person. The latter scenario is increasingly

common: “[M]illions of wireless numbers are reassigned each year.” ACA Int’l v. FCC, 885 F.3d 687, 705

(D.C. Cir. 2018). So, for example, if Claire canceled her

mobile phone service, her number could be reassigned

to another customer, who might continue to receive

some of the text messages for Claire described above.

Critically, retailers and restaurants currently

have no way to know that the phone number in their

database—once owned by a consumer who legitimately

consented to receiving texts from the company—was

reassigned by the cellular provider. 2015 FCC Order,

30 FCC Rcd. at 8093 (O’Rielly, Comm’r, dissenting in

part and approving in part) (“There is simply no realistic way for a company to comprehensively determine

whether a number has been reassigned.”).4

4

In December 2018, the FCC undertook to create a database

of reassigned numbers. Advanced Methods to Target & Eliminate

Unlawful Robocalls, 33 FCC Rcd. 12,024, 12,029 (2018). But

almost two years later, the agency is still in the early stages of

establishing the database, with no clear date for its completion.

See, e.g., Consumer and Governmental Affairs Bureau Announces

25

Plaintiffs and their lawyers intentionally exploit

that information gap on wrong or recycled numbers to

bring suit. Id. at 8091; see id. at 8073 (Pai, Comm’r,

dissenting). In one instructive example, a plaintiff

boasted that she had purchased no fewer than 35 cell

phones for the sole purpose of attracting calls to reassigned numbers that she could convert into lucrative

TCPA claims. Stoops, 197 F. Supp. 3d at 798-99, 801.

She made a point of choosing area codes in economically depressed areas, hoping she would thus receive

more frequent debt collection calls attempting to reach

customers who previously had those phone numbers.

Id. at 799. According to her deposition testimony, she

transported her shoebox full of cell phones and call logs

with her at all times (even on vacations) as part of her

TCPA business:

Q. Why do you have so many cell phone

numbers?

A.

I have a business suing offenders of the

TCPA * * *. It’s what I do.

Q. So you’re specifically buying these cell

phones in order to manufacture a TCPA?

In order to bring a TCPA lawsuit?

A. Yeah.

Compliance Date for Reassigned Numbers Database Rules, CG

Docket No. 17-59 (FCC July 2, 2020) (requiring voice service providers to begin maintaining records of reassigned numbers, but

noting that the database is not yet “established” and that the FCC

has merely “issued a request for proposals for an Administrator

to build and operate” the database).

26

Id. at 788, 798-99; see also Jessica Karmasek, Filing

TCPA Lawsuits: ‘It’s What I Do,’ Says Professional

Plaintiff with 35 Cell Phones, Forbes (Aug. 25, 2016),

https://www.forbes.com/sites/legalnewsline/2016/08/25/

filing-tcpa-lawsuits-its-what-i-do-says-professionalplaintiff-with-35-cell-phones. Other examples abound

of serial TCPA plaintiffs using similar tactics to manufacture TCPA liability. See, e.g., John O’Brien, Phoney

Lawsuits: Man Has Filed 80 Lawsuits and Uses

Sleuthing Skills to Track Down Defendants, Forbes

(Nov. 1, 2017), https://www.forbes.com/sites/legalnewsline/

2017/11/01/phoney-lawsuits-man-has-filed-80-lawsuitsand-uses-sleuthing-skills-to-track-down-defendants

(describing plaintiff who owns three cell phones for the

purpose of filing TCPA lawsuits).

Under the plain text of the statutory ATDS definition, there is no reassigned-number liability trap for

legitimate businesses—they do not use equipment that

autogenerates and dials random or sequential telephone numbers. But the Ninth Circuit’s interpretation

effectively relieves plaintiffs of the need to establish

that threshold ATDS requirement, and instead shifts

the burden to defendants to establish consent or

another exception. Given this difficulty, conscientious

businesses may conclude that the only way to protect

themselves is to forgo all texts, even those that are

truly valued by most consumers like Claire. Indeed,

some retailers have already done so. See, e.g., Letter

from Abercrombie & Fitch Co., CG Docket No. 02-278,

at 4 (FCC May 13, 2015) (noting that “Abercrombie

has eliminated the distribution of text messages to

27

particular customers based solely on their carriers”

because “the only way to avoid TCPA liability altogether for calls or texts related to reassigned numbers

is to cease communicating”).

That result does not benefit consumers. It harms

them. Patients could run out of medicine or miss doctor’s appointments; retail and restaurant customers

might not receive delivery notifications, earned discounts, or loyalty points; and credit card holders may

not be notified of potential fraud. The Ninth Circuit’s

interpretation of an ATDS thus hurts the very consumers Congress enacted the TCPA to protect.

E. The Ninth Circuit’s ATDS Interpretation Is Not Necessary To Protect Consumers From Robocalls

It is emphatically “[n]ot true” that “nothing will

stand in the way of telemarketers who wish to inundate citizens with solicitations and scams” unless the

ATDS provision is interpreted “to prohibit devices that

automatically call a stored list of numbers.” Glasser v.

Hilton Grand Vacations Co., 948 F.3d 1301, 1312 (11th

Cir. 2020) (Sutton, J.). To the contrary, many statutory

and regulatory provisions protect consumers from

unwanted and intrusive calls.

The TCPA itself provides many such protections.

To start, correctly construed, the automated-call prohibition still protects consumers from random or sequential calls—the types of calls that motivated Congress

to enact the TCPA. See AAPC, 140 S. Ct. at 2348

(“The continuing robocall restriction proscribes tens of

28

millions of would-be robocalls that would otherwise

occur every day.”). Further, separate from the automated-call prohibition—and thus regardless of the

scope of the ATDS definition—the TCPA prohibits

most calls to cell phones using “an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). The TCPA also

proscribes telephone solicitations to numbers on the

National Do Not Call Registry. Id. § 227(c). Consumers also can request to be added to individual companies’ internal do not call lists. Cf. id. § 227(c)(1)(A).

And the recent TRACED Act, which amended the

TCPA, requires service providers to implement antispoofing call-authentication technologies and instructs

the FCC to study additional measures to reduce illegal

robocalls and spoofed calls. See Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and

Deterrence Act, Pub. L. No. 116-105, 133 Stat. 3274

(Dec. 30, 2019).

Other statutes and regulations also provide robust

mechanisms to address unwanted calls. The Telemarketing Sales Rule (“TSR”) administered by the Federal

Trade Commission, like the TCPA, prohibits telemarketing calls to numbers on the National Do Not Call

Registry or individual telemarketers’ do not call lists.

16 C.F.R. § 310.4(b)(1)(iii). It also proscribes a wide

range of other deceptive and abusive telemarketing

practices. For instance, the TSR prohibits telemarketing calls that deliver a prerecorded message unless the

recipient has specifically provided written consent to

receive prerecorded calls, id. § 310.4(b)(1)(v)(A), and

limits the times at which telemarketers can place calls,

29

id. § 310.4(c). Further, federal statutes such as the

Fair Debt Collection Practices Act safeguard consumers from specific types of unwanted calls. See, e.g., 15

U.S.C. § 1692c(c) (requiring debt collectors to cease

communicating with consumers upon request). Individual states also have enacted laws that regulate telemarketing and collections calls. See, e.g., N.Y. Gen.

Bus. Law § 399-z(9) (requiring telemarketers to inform

recipients that they may request to be added to the

caller’s do not call list).

Rejecting the Ninth Circuit’s ATDS interpretation

thus would not cause “tens of millions of consumers” to

be “bombarded every day with nonstop robocalls.”

AAPC, 140 S. Ct. at 2356. Instead, it would enable retailers, restaurants, and other legitimate businesses to

send communications their customers want and value

without risking arbitrary and massive liability in

TCPA lawsuits.

II.

THE NINTH CIRCUIT’S INTERPRETATION

OF THE ATDS PROVISION IS WRONG AND

SHOULD BE OVERTURNED

The Ninth Circuit’s reading of the ATDS definition

is as wrong as it is harmful. A device that merely dials

from a stored list of numbers is not an ATDS.

Once again: subject to exceptions, the TCPA

makes it unlawful “to make any call * * * using any

automatic telephone dialing system” to any cellular

telephone. 47 U.S.C. § 227(b)(1)(A). The TCPA defines

an ATDS as “equipment which has the capacity—(A) to

store or produce telephone numbers to be called, using

30

a random or sequential number generator; and (B) to

dial such numbers.” Id. § 227(a)(1).

As the Third, Seventh, and Eleventh Circuits have

correctly concluded, this text unambiguously requires

that both “stor[ing] * * * telephone numbers to be

called” and “produc[ing] telephone numbers to be

called” be performed “using a random or sequential

number generator.” Dominguez v. Yahoo, Inc., 894 F.3d

116, 121 (3d Cir. 2018); Gadelhak v. AT&T Servs., Inc.,

950 F.3d 458, 460 (7th Cir. 2020); Glasser, 948 F.3d at

1304-05. Thus, an ATDS must be capable of generating

random or sequential telephone numbers and dialing

those numbers. E.g., Gadelhak, 950 F.3d at 469.

Equipment that merely makes calls to a predetermined list of stored telephone numbers—rather than a

list of numbers generated randomly or sequentially—

is not an ATDS. E.g., Glasser, 948 F.3d at 1306.

The Ninth Circuit, however, incorrectly reads the

statute to define an ATDS as “equipment which has the

capacity—(1) to store numbers to be called”—full

stop—“or (2) to produce numbers to be called, using a

random or sequential number generator—and to dial

such numbers.” Marks, 904 F.3d at 1052 (emphasis

added); see Pet. App. 6. Under that reading, any equipment with the capacity both to “store” telephone numbers and to “dial” them is an ATDS. It need not include

any “random or sequential number generator” at all.

Amici support the detailed arguments in petitioner’s

brief on how erroneous that interpretation is and make

only three brief points here.

31

First, the Ninth Circuit’s interpretation violates

longstanding statutory-construction principles. Under

basic rules of grammar, “using a random or sequential

number generator” modifies both “produce” and “store.”

“When two conjoined verbs (‘to store or produce’)

share a direct object (‘telephone numbers to be called’),

a modifier following that object (‘using a random or

sequential number generator’) customarily modifies

both verbs.” Glasser, 948 F.3d at 1306; Gadelhak, 950

F.3d at 464.

Second, the TCPA’s legislative history confirms the

text’s plain import. There is “plenty of evidence” in “the

legislative history” that Congress was specifically concerned with the harm caused by “machines that dialed

randomly or sequentially generated numbers,” not

with the innocuous practice of merely storing numbers

to be dialed. Glasser, 948 F.3d at 1311. For instance,

the Senate Report cited complaints that “some automatic dialers will dial numbers in sequence, thereby

tying up all the lines of a business and preventing any

outgoing calls.” S. Rep. No. 102-178, at 2 (1991).

Finally, the Ninth Circuit’s statutory construction

needlessly creates a grave overbreadth problem. In

that court’s view, even a smartphone is an ATDS—all

such devices can “store numbers to be called” and “dial

such numbers.” Marks, 904 F.3d at 1052. Indeed, the

Ninth Circuit conceded that its “gloss on the statutory

text” could “not avoid capturing smartphones.” Pet.

App. 8-9. As the D.C. Circuit recognized, however, “[i]f

every smartphone qualifies as an ATDS, the statute’s

restrictions on autodialer calls assume an eye-popping

sweep.” ACA Int’l, 885 F.3d at 697. The First

32

Amendment would not “allow Congress to punish

every unsolicited call to a cell phone.” Glasser, 948 F.3d

at 1310. Construing the ATDS definition according to

its plain terms avoids that constitutional defect.

***

The Court should reject the Ninth Circuit’s atextual interpretation of an ATDS, which is harming consumers and fueling counterproductive TCPA litigation.

CONCLUSION

For these reasons and those in the petitioner’s

brief, the judgment should be reversed.

Respectfully submitted,

DEBORAH R. WHITE

KATHLEEN F. MCGUIGAN

RETAIL LITIGATION CENTER, INC.

99 M St. SE, Suite 700

Washington, DC 20003

Counsel for Retail Litigation

Center, Inc.

STEPHANIE A. MARTZ

NATIONAL RETAIL FEDERATION

1101 New York Ave. NW,

Suite 1200

Washington, DC 20005

Counsel for National Retail

Federation

ANGELO I. AMADOR

RESTAURANT LAW CENTER

2055 L St. NW, Suite 700

Washington, DC 20036

Counsel for Restaurant Law Center

SEPTEMBER 11, 2020

JOSEPH R. PALMORE

Counsel of Record

SAMUEL B. GOLDSTEIN

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave. NW

Washington, DC 20006

(202) 887-6940

JPalmore@mofo.com

MEREDITH C. SLAWE

MICHAEL W. MCTIGUE JR.

COZEN O’CONNOR

One Liberty Pl.

1650 Market St., Suite 2800

Philadelphia, PA 19103

Counsel for Amici Curiae