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, ET AL.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE JOHN MCCURLEY

AND DAN DEFOREST IN SUPPORT OF

RESPONDENT

KAZEROUNI

LAW GROUP, APC

Abbas Kazerounian, Esq.

Counsel of Record

Jason A. Ibey, Esq.

245 Fischer Avenue, D1

Costa Mesa,

California 92626

Phone: (800) 400-6808

ak@kazlg.com

jason@kazlg.com

LAW OFFICES OF TODD

M. FRIEDMAN, P.C.

Todd M. Friedman, Esq.

Adrian R. Bacon, Esq

Thomas E. Wheeler

21550 Oxnard St., Ste. 780

Woodland Hills, CA 91367

Phone: (877) 206-4741

tfriedman@toddflaw.com

abacon@toddflaw.com

twheeler@toddflaw.com

Attorneys for Amici Curiae John McCurley and Dan

Deforest

i

TABLE OF CONTENTS

INTEREST OF AMICUS ............................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ……………………………………………..5

History Of Autodialer Technology .......................... 5

The Passage Of The TCPA In 1991 ........................ 8

The 1992 and 2003 FCC Orders ........................... 14

Interpreting The Definition Of ATDS To Preclude

Dialing Systems That Dial From Stored Lists

Would Render The Consent Requirement

Irrelevant ............................................................... 20

CONCLUSION.......................................................... 25

ii

TABLE OF AUTHORITIES

Cases

ACA International v. Federal Communications

Commission, 885 F.3d 687 (D.C. Cir. 2018) ....... 3, 4

Duncan v. Walker, 533 U.S. 167 (2001) .................. 24

Hill v. Homeward Residential, Inc., 799 F.3d 544

(6th Cir. 2015) ....................................................... 21

Lamie v. U.S. Trustee, 540 U.S. 526 (2004) ............ 24

Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d

1110 (11th Cir. 2014) ............................................ 21

Marks v Crunch San Diego, LLC, 904 F.3d 1041 (9th

Cir. 2018), cert. dismissed, 139 S. Ct. 1289, 203 L.

Ed. 2d 300 (2019)............................................... 1, 20

Microsoft Corp. v. i4i Ltd. Partnership, 131 S.Ct.

2238 (2011) ............................................................ 24

Satterfield v. Simon & Schuster, Inc., 569 F.3d 946

(9th Cir. 2009)......................................................... 21

Van Patten v. Vertical Fitness Group, LLC, 847 F.3d

1037 (9th Cir. 2017)................................................ 20

Statutes

Telephone Consumer Protection Act, 47 U.S.C. § 227

et. seq. ............................................................ passim

Regulations

47 C.F.R. §§ 64.1200............................................ 19, 21

7 FCC Rcd. 8752 (F.C.C. September 17, 1992) ....... 15

In re GroupMe, Inc./Skype Commc’ns S.A.R.L.

Petition, 29 FCC Rcd. 3442 (2014) ....................... 21

In re Rules and Regulations Implementing the

Telephone Consumer Protection Act of 1991, 18

FCC Rcd. 14014 (2003).......................................... 18

In the Matter of Rules & Regulations Implementing

the Tel. Consumer Prot. Act of 1991, 23 F.C.C.

Rcd. 559, 565 (Jan. 4, 2008) .................................. 20

iii

Other Authorities

Comment of Int’l Telesystems Corp. on TCPA of 1991

(received June 1, 1992) ......................................... 16

Comment of Metrocall In The Matter Of The

Telephone Consumer Protection Act of 1991

(received June 22, 1992) ....................................... 16

Comment of Mktg. Inc. In Re: Telephone Consumer

Protection Act Of 1991 (received June 23, 1992) . 16

Comment of TeleCheck Services, Inc. on CC Dkt No.

92-90 (received June 1, 1992) ............................... 16

Hearing Before the Subcommittee on

Communications of the Committee on Commerce,

Science and Transportation, United States Senate

One Hundred Second Congress First Session July

24, 1991, Testimony of Robert Bulmash .. 10, 11, 12

In re Rules and Regs. Implementing Tel. Consumer

Protection Act of 1991, 27 FCC Rcd. 1830, at 1840

¶ 25 (Feb. 15, 2012) (“2012 Order”) ...................... 21

Reply Comments of Ameritech Operating Companies

In Re: Telephone Consumer Protection Act Of

1991, at pp. 2-3 (received June 24, 1992) ............. 17

Second Comment of Digital Systems Int’l, Inc. In The

Matter of The Telephone Consumer Protect Act of

1991 (received June 24, 1992)............................... 17

U.S. Patent No. 3,407,269 (issued Oct. 22, 1968) .. 6, 8

U.S. Patent No. 3,899,645 (issued Aug. 12, 1975) . 6, 8

U.S. Patent No. 3,943,289 (issued Mar. 9, 1976) ... 6, 8

U.S. Patent No. 3,989,899 (issued Nov. 2, 1976) ....... 7

U.S. Patent No. 4,829,563 (issued May 9, 1989) ....... 8

U.S. Patent No. 4,881,261 (issued Nov. 14, 1989) ..... 8

INTEREST OF AMICUS

Amicus Curiae are two consumers John

McCurley and Dan Deforest, who are frequent recipients of unwanted robocalls, and who have been appointed class representatives in the certified class

action of McCurley v. Royal Seas Cruises, Inc., Case

No. 17-cv-00986-BAS-AGS (S.D. Cal.).1 They are

represented in the Royal Seas Cruises action by The

Law Offices of Todd M. Friedman, P.C. (“LOTMF”)

and Kazerouni Law Group A.P.C. (“KLG”),2 who are

class action attorneys that are some of the most frequent practitioners under the Telephone Consumer

Protection Act, 47 U.S.C. § 227 et. seq. (“TCPA”),

representing consumers across the United States.

Undersigned Counsel present this Brief from a background of having collectively litigated numerous issues under the TCPA in hundreds of actions. Undersigned Counsel were also counsel for the plaintiff in

the matter of Marks v Crunch San Diego, LLC, 904

F.3d 1041 (9th Cir. 2018), cert. dismissed, 139 S. Ct.

1289, 203 L. Ed. 2d 300 (2019). LOTMF and KLG

have also advanced consumer privacy rights by regularly drafting comments to the FCC regarding interpretive rulemakings surrounding the TCPA.

The McCurley matter involves an overseas call

vendor which placed over 630 million phone calls on

––––––––––––––––––––––––

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.

2 While drafting this Amicus Brief, undersigned counsel received no less than a dozen robocalls.

2

behalf of Royal Seas Cruises and others as part of a

widespread telemarketing campaign for which its

services were contracted. These campaigns involved

the use of a predictive dialer, which was calling

stored lists of over 50 million Americans’ telephone

numbers, that the overseas vendor was purchasing

from a variety of sources, some of which are alleged

to be questionable. The record contains evidence

that the over 630 million telemarketing calls were

placed using a prerecorded voice and were automatically dialed in a manner which did not involve any

human intervention, but for which Royal Seas Cruises contends were called with prior express written

consent.

It is worth mentioning that the type of dialing

system that was used here is exactly what the everyday American thinks of when they think of a robocall

– mass numbers of calls placed with a computer, and

not a live agent and where prerecorded voices are

used. Mr. Deforest and Mr. McCurley, were the joint

recipients of over twenty unwanted robocalls from

just this one single company. However, because the

systems function by automatically calling stored lists

of 53 million Americans’ phone numbers without any

human intervention whatsoever, based on a strict

reading of Facebook’s position, that system would not

meet the legal test for an Automatic Telephone Dialing System if this Court sides with Facebook. Such a

position defies logic and the will of the American

people, as expressed by Congress.

SUMMARY OF ARGUMENT

The Telephone Consumer Protection Act, 47

U.S.C. §§ 227, et seq., is an important consumer privacy statute designed to protect consumers from an

3

alarmingly increasing trend of unwanted and voluminous automated telephone calls. The TCPA‘s prohibition at issue (for autodialed calls and text messages) requires the calls to be made through an automatic telephone dialing system (“ATDS”), which

Congress defines 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). The question of whether a dialing system

qualifies as an ATDS focuses primarily on two issues,

which should not be conflated:

1. Can an ATDS merely possess the capacity to

automatically dial stored lists of numbers or

must it also be able to randomly or sequentially

produce those lists of numbers?3

2. What does “capacity” mean?

In the views of Amicus Curiae, this Court

should and need only answer the former question on

this Appeal, as the circuit court level law yet remains

undeveloped on the question of capacity, and as the

FCC is currently revisiting the “capacity” standard for

purposes of rulemaking. Moreover, there is little in

the way of a factual record regarding Facebook’s texting platform in this case that would advise the Court

––––––––––––––––––––––––

3 As the D.C Circuit recently framed this issue “[a] basic ques-

tion raised by the statutory definition is whether a device must

itself have the ability to generate random or sequential telephone numbers to be dialed. Or is it enough if the device can

call from a database of telephone numbers generated elsewhere?” ACA International v. Federal Communications Commission, 885 F.3d 687, 701 (D.C. Cir. 2018).

4

as to the actual capacity of Facebook’s dialing platform. Rather, the focus of the briefing is geared towards a split in authority between circuit courts on

the first question, with some courts following a similar

line of reasoning as Marks, supra, while others hold

that a system that cannot itself generate lists of numbers to be dialed is insufficient under the plain language of the statute to meet the definition of an

ATDS. The D.C. Circuit lies in the middle, observing

that “[it might be permissible for the Commission to

adopt either interpretation.” ACA International v.

Federal Communications Commission, 885 F.3d 687,

703 (D.C. Cir. 2018) (going on to observe that “the

choice between the interpretations is not without

practical significance.”)

Six Circuit Courts have now addressed the

question of what constitutes an ATDS under the Telephone Consumer Protection Act. Each has a different answer. But in the views of Amicus Curiae, none

of these decisions focus enough on the actual technologies that unquestionably were the target of Congressional concerns at the original time that the

statute was enacted. No matter what approach to

law is taken, the TCPA should be interpreted in a

manner that is consistent with the plain language of

the statute as a whole, and the clear and unambiguous intentions of Congress, as exemplified by the

Legislative History.

These six decisions all ignore a straightforward and obvious problem with the reading advanced by Facebook in this matter – predictive dialers are autodialers and they always have been. Such

technology existed well before the TCPA was enacted, and functions in the very way that most people

colloquially think of an autodialer functioning. In-

5

deed, the very concept of an automated telephonic

dialing system originated in the 1970s with the creation of and patent of predictive dialing technology.

The technology has not changed significantly since

that time. The law has likewise not changed since its

enactment. But clever lawyers making clever arguments have somehow distorted the original intent of

Congress, stretching the bounds of the law beyond its

breaking point.

Equally troubling is the fact that by requiring

a dialing platform to actually itself generate the lists

of numbers, as opposed to being capable of automatically dialing them from a list inputted by a company,

an entire codified defense for otherwise violative conduct (prior express consent) would be effectively excised from the statute rendering the provision totally

meaningless surplusage.

This Brief attempts to fill in the gaps of the

technology that gave rise to the enactment of the

Telephone Consumer Protection Act, to give context

to what an ATDS actually is and how it functions,

and make clear that predictive dialing has existed

since over a decade before the TCPA was drafted and

passed. Ambiguous syntax should not prevail over

crystal clear context.

ARGUMENT

History Of Autodialer Technology

At its root, an autodialer is simply a system

that has the capacity to automatically dial phone

numbers en masse, without human intervention.

Autodialers calling from stored lists of numbers go

back at least to 1968, with the patent of such

6

automated dialing technology. See U.S. Patent No.

3,899,645 (issued Aug. 12, 1975) (“processor for

controlling the operation of a telephone”); U.S.

Patent No. 3,407,269 (issued Oct. 22, 1968) (“system

for automatically sequentially signaling plural

different alarm messages to different telephone

subscribers”); U.S. Patent No. 3,943,289 (issued Mar.

9, 1976) (“automatic telephone caller”). Some early

autodialers were designed to call lists of phone

numbers, but at that time computer storage was very

expensive. As a result of the cost of computer

storage, some early autodialers were designed to

generate numbers, then call them. However, by the

mid 1970’s, computer storage became affordable to

the point that desktop computers began finding their

way into consumers’ homes. The breakthrough in

computer storage replaced the need to generate

phone numbers. Thus, as a result of increased

efficiency of storing data, the only software to have a

need to generate telephone numbers in the early

days of robodialing were “war dialers” used for

finding modems and fax machines, not to place

telephone calls. 2003 FCC Report and Order, ¶135

(released July 3, 2003).

The affordability of computer storage in the mid

1970’s led to “predictive dialers.” Predictive Dialers

were invented in the mid-1970’s with precisely the

same functionality as they have today. Similarly to

other autodialers, predictive dialers (colloquially

referred to as “live-agent” dialers) also call from a

stored list of phone numbers, but utilize algorithms

to “predict” when an agent will receive a live

7

answer.4 Such technology goes back to at least 1976,

and carries the same functionality of predictive

dialers today. See U.S. Patent No. 3,989,899 (issued

Nov. 2, 1976) (“telephone scheduling system”); U.S.

Patent No. 4,817,130 (issued

Mar. 28, 1989) (“call

management system with protocol converter and port

controller”).

By the early 1980’s, Davox Corporation (now

known as Aspect), marketed its predictive dialer installed on a standard desktop computer for $17,569.

This predictive dialer called numbers stored in a database, predicting how many calls to make for each

agent to get a live answer, and routing the call to a

call agent. See U.S. Patent No. 4,881,261 at p. 4 (issued Nov. 14, 1989). During this time, Radio Shack

offered a computer with autodialing software which

called from a stored list of numbers for $799. See

U.S. Patent No. 3,989,899 at p. 9 (issued Nov. 2,

1976). In 1981, police were using an autodialer that

called from a stored list of numbers to aid in their investigations. Id. at p. 10.

––––––––––––––––––––––––

4 As a crude example, imagine an algorithm predicts that 10%

of people will pick up a call placed to their phone. A predictive

dialer can place ten calls for every one employee agent, and

thereby accomplish the efficiency of ten people in a fraction of

the time, and for a fraction of the labor cost. This type of automated dialing results in what are referred to as “abandoned”

calls, i.e. instances where circumstances and happenstance result in the number of calls placed outpacing the number of live

agents on standby. Imagine two of the ten people picking up

the calls with only one available agent This leads to answered

calls being met with dead air and no agent to pick up. Abandoned calls are exclusively an indicator of predictive dialer

technology, and have long been a target of both Congress and

the FCC, as described below.

8

After Davox dominated the market in the early

1980’s, others began competing by developing a better predictive algorithm.

See U.S. Patent No.

4,829,563 (issued May 9, 1989) (“method for predictive dialing”); U.S. Patent No. 4,881,261 (issued Nov.

14, 1989) (“method for predictive pacing of calls in a

calling system”). With the development of affordable

computer storage in the mid 1970’s we saw the transition from autodialing from generated numbers to

autodialing stored numbers. Many “agent-less” autodialers called stored lists of numbers at that time.

See U.S. Patent No. 3,899,645 (issued Aug. 12, 1975);

U.S. Patent No. 3,407,269 (issued Oct. 22, 1968); U.S.

Patent No. 3,943,289 (issued Mar. 9, 1976).

By the 1980s, all Predictive dialers called from

stored lists of numbers. Thus, it is a technological

and historic fact that since at least 15 years before

the TCPA, telemarketers relied on lists of phone

numbers. It was the proliferation of predictive dialer

technology (technology that automatically dials

stored lists of numbers) that sparked consumer outrage and resulted in the passage of the TCPA.

The Passage Of The TCPA In 1991

It is against this technological backdrop that the

TCPA was enacted in 1991. Congress was aware of

this technology and enacted the law in direct response to such emerging intrusions. Such is clear

from the Legislative History.5

––––––––––––––––––––––––

5 Briefing of Duguid, and other supporting briefs sufficiently

address testimony before the House, but do not sufficiently address what happened before the Senate. This brief will thus

focus primarily on Senate testimony.

9

The Senate testimony of Robert Bulmash, president and founder of Private Citizen, Inc., is particularly of interest and worth review:

There is the incident where an autodialer that

I am aware of called folks who were trying to

call an ambulance for their father-in-law to get

them to the hospital, tying the lines.

But there is an even more insidious issue coming up in the area of automatic dialing announcing machines and that is called predictive dialers. Predictive dialers are machines

that major telemarketing service agencies

were using at the rate of perhaps 5 percent the

last year. Now between 30 to 40 percent of the

national telemarketing firms are using them

this year. Predictive dialers dial in advance of

the availability of a telemarketer to take the

call of the person who answers their phone.

What we are encountering is many people

picking up the phone, hearing dead air and

then being hung up on. The telenuisance industry, those folks who make predictive dialers, recommend to their customers that a 2 to

8-percent abandonment rate be set in using

this type of equipment.

Abandonment rate is the rate at which we are

hung up on by these machines who call us to

the phone, because the telemarketer does not

want to have to wait for. us to come to the

phone, does not want to have to wait for busy

signals, for the phones to ring, for disconnect

messages. They want live people on the phone

to go through as many folks as they can in the

shortest period of time to increase their effi-

10

ciency. We are nothing more than sources of

revenue to an industry that has lost its moral

compass, or it points only to the bank.

We talk about boiler rooms. Boiler rooms no

longer refer to flyby-night organizations. They

are rather the engines of business in this

country. Major American corporations are calling consumers at a rate of 5 to 7 million times

per month. We are not talking about boiler

rooms. We are talking about respectable businesses.

The top three or just three large telemarketing

firms in this country have the phone fire power, live phone fire power, to call 65 people per

second across the country. If that gives you a

flavor of what this is about, I hope it does. We

are up against big business and they are coming into our homes, and there is nothing that

the average consumer can do to stop that, no

regulation. We need help.

Hearing Before the Subcommittee on Communications of the Committee on Commerce, Science and

Transportation, United States Senate One Hundred

Second Congress First Session July 24, 1991, Testimony of Robert Bulmash (hereinafter “Senate Testimony”) at pg 16. Mr. Bulmash went on to testify

about the skyrocketing use of predictive dialers by

telemarketers, and the intrusiveness of their trademark feature of resulting in abandonment rate.

Increasingly, big telemarketing firms are using new machines called Predictive Dialer.

These devices try to guess the rate at which

their tele-yacking staff will be available to

make their next pitch, then dials enough

11

homes (taking into account no answers &

busys), to have the next telemark on line,

ready to be hustled as soon as the last one

hangs up.

When more folks answer than the machine expected, the device will either hang up on us or

plays a tape asking that we hold for a yacker.

Telemarketers term these hang-up calls

“phantom calls” because we will not know we.

were yanked from dinner and insulted just to

enable a telemarketing outfit to save time.

A predictive dialer’s speed is controlled by setting its “abandonment rate”, the rate at which

the machine will “overdial”, thus summoning

more citizens to their phones than their are

tele-yackers to pitch them. When this occurs,

the machines generally hang-up on us. Manufacturers of predictive dialers feel that a 25 to

89 abandonment rate “is acceptable” for sales

solicitations

…

A telemarketing trade publication recently reported that last year an estimated 5 percent.

of American telemarketing service agencies

were using predictive dialers. This year’s

(1991) estimate is around 35 percent.”

Id. at pg 19.6 He then went on to describe how such

systems are designed to call stored lists of phone

numbers.

––––––––––––––––––––––––

6 See also pgs. 24-25 where Mr. Bulmash and Senator Pressler

have an exchange regarding the annoyance of abandoned calls.

12

Of course the telemarketing industry is concerned about legislation that would protect citizens. As a result, the Direct Marketing Association encourages citizens to list themselves

with what the DMA euphemistically calls The

Telephone Preference Service. The DMA then

sells this list to firms that want to purge call

lists of folks who don’t want to be solicited.

Problem is, usage of this list is voluntary on

the part of telemarketers and the vast majority ignore it.

…

There are list brokers out there whose business it is to sell phone numbers, names, and so

on and so forth, to the telemarketing industry,

if you will.7

Id. at pgs. 19 and 27. In other words, predictive dialers which called from lists of numbers is precisely

the type of invidious and obnoxious technology that

Robert Bulmash testified to in July 24, 1991, and

which heavily influenced the enactment of the TCPA.

On a related note, Steve Hamm (administrator of

the South Carolina Department of Consumer Affairs)

testified about robodialers that delivered prerecorded messages (what are referred to in the lexicon of the TCPA as agent-less dialers). Id. at pg. 11.

Steve Hamm testified how the dialers that delivered

pre-recorded messages would sometimes be used to

call generated lists of numbers, either sequential or

––––––––––––––––––––––––

Lead brokers like this are a growing problem in the TCPA

arena, as exemplified in the McCurley v Royal Seas Cruises action.

7

13

random. However, in contrast to this, Robert Bulmash testified of Predictive Dialers (referred to in

the lexicon of the industry as agent-dialers) which

were specifically designed to call from stored lists of

numbers. Over the last couple decades, confusion

appears to have developed, in part by fault of the

FCC’s contradictions of its definitions of ATDS,

whereas in actuality, the technology was very

straightforward and widely understood in 1991 when

the statute was enacted.

The Congressional testimony shows that there

are two types of dialers, “agent” dialers (Predictive

Dialers) and “agent-less” dialers (pre-recorded messages and artificial voice).8 The reality is that the

only difference between the dialing systems about

which Steve Hamm and Robert Bulmash testified

and those used today, is computers are exponentially

faster today than in 1991. Simply stated, the dialers

operate exactly the same way only instead of thousands of calls per day, they can place millions of calls

per hour.

Obviously, the concern of Congress was to ban

such invasive technology from being used without

consumer consent. However, Facebook’s position

would necessitate a fanciful inquiry to determine

whether such calls were permissible – could that

computer generate the list of numbers on its own, before autodialing them and annoying people, or must

a list be loaded into the system? The absurdity of

this argument can be demonstrated by the example

of loading every number listed in the Chicago White

––––––––––––––––––––––––

8 Indeed, the 1992 FCC Order recognizes this dichotomy, as de-

scribed below.

14

Pages into a predictive dialer and dialing every

number 10 times an hour for three days straight.

Because the phone numbers came from a list rather

than a sequential or random number generator, Facebook’s position would necessitate a finding that

such an autodialer cannot be defined as an ATDS.

Again, this history, foundation and context are

important because Facebook and many commenters

supporting Facebook’s reading of the statute would

paint a picture of an evolving set of technologies

(such as smartphones) which are far removed from

the original technology targeted by Congress at the

time of the statute. Not so. Predictive dialing technology was the same then as it is now, as demonstrated from the history of the patents on said technology, and the testimony before Congress, with the

only change being the speed of computers and the

amount of data that can be economically stored

thereon. This technology always has had the capacity to automatically dial stored lists of numbers, as

opposed to randomly generating its own lists of numbers, which is itself a form of technology (war dialing) that is hardly ever used at all, and clearly was

not what the Congressional hearings addressed.

The 1992 and 2003 FCC Orders

Much ado is made about the 2003 FCC Order and

whether it remains valid after the ACA opinion (it

does). However, there is another equally important

FCC Order issued almost immediately after the passage of the TCPA, which provides us with a historical

snapshot of what technology was targeted as an

ATDS at the time Congress passed the law, and what

automated dialing technologies the industry was us-

15

ing to contact consumers for purposes of debt collection and telemarketing at that time. History tells us

definitively that both the industry and the regulators

believed, at the time the TCPA was passed, that

Congress had clearly and unambiguously passed a

law that outlawed predictive dialers that automatically called stored lists of numbers.

In 1992, the FCC’s first ruling on the TCPA recognized the importance of restrictions on equipment

such as predictive dialers, i.e. equipment which autodialed stored lists of numbers. Referring in part to

“predictive dialers” to place live solicitation calls (7

FCC Rcd. 8752, 8756 (F.C.C. September 17, 1992))

(“1992 FCC Order”), the FCC then opined that “both

live [referring again to live solicitation calls, such as

with a predictive dialer] and artificial or prerecorded

voice telephone solicitations should be subject to significant restrictions” Id. That is because the meaning of an “autodialer” and “predictive dialer” was understood very well by the FCC in 1992. 1992 FCC

Order at ¶¶ 8-9.

In the events leading up to the 1992 FCC Order,

the comments submitted by members of the industry

suggest that they were aware that the definition of

ATDS passed by Congress would relate to their predictive dialing systems, unless the FCC exempted

those systems.

Commenter Telecheck Services, Inc. in its comment to the FCC stated “Debt collection is a noncommercial use. It is a non-telemarketing use of an

autodialer or predictive dialer which is not intended

to be protected under TCPA…In the collection business predictive dialer are often used to expedite the

collection process. The dialer randomly dials num-

16

bers entered into its system and connects an available live operator to the call when it is answered.” See

Comment of TeleCheck Services, Inc. on CC Dkt No.

92-90 (received June 1, 1992), available at

https://ecfsapi.fcc.gov/file/1027570001.pdf.

Commenter International Telesystems Communications petitioned the FCC to confirm that live operator calls made by a nonprofit organization using

predictive dialers be held exempt under the TCPA

since they can immediately deliver answered calls to

a live operator. See Comment of Int’l Telesystems

Corp. on TCPA of 1991 (received June 1, 1992),

available

https://ecfsapi.fcc.gov/file/1027580001.pdf.

at

Commenter Metrocall describes a nightmarish

situation where a predictive dialer operated by a

newspaper subscription operator caused a serious

service outage, and requested the FCC not provide

any exemptions for use of such invidious technology.

See Comment of Metrocall In The Matter Of The Telephone Consumer Protection Act of 1991 (received

June

22,

1992),

available

at

https://ecfsapi.fcc.gov/file/1037040001.pdf.

Commenter Mkt. Incorporated requested an exemption for predictive dialer technology used by survey companies. See Comment of Mktg. Inc. In Re:

Telephone Consumer Protection Act Of 1991 (received

June

23,

1992),

available

at

https://ecfsapi.fcc.gov/file/1037050001.pdf.

Commenter Ameritech Operating Companies

touted the business efficiencies advanced by use of

predictive dialers as a justification for exempting use

of this invasive technology. See Reply Comments of

Ameritech Operating Companies In Re: Telephone

17

Consumer Protection Act Of 1991 (received June 24,

1992),

available

at

https://ecfsapi.fcc.gov/file/1037500001.pdf.

Commenter Digital Systems created a series of

tables summarizing the position of many other commenters regarding use of predictive dialer technology. See Second Comment of Digital Systems Int’l,

Inc. In The Matter of The Telephone Consumer Protect Act of 1991, at pp. 4-14 (received June 24, 1992),

available

https://ecfsapi.fcc.gov/file/1037550001.pdf.

at

This represents just some of the dozens of comments from businesses and interest groups surrounding the use of predictive dialers at the time immediately following the enactment of the TCPA. Much

can be gleaned from this history, most importantly

that it was well understood by those in the debt collection and telemarketing industries that a predictive dialer that calls from a defined list of numbers

was an ATDS under the plain language of the TCPA.

Why else would all of these businesses be asking in

unison for the FCC to implement rules exempting

certain types of calls and methods of calls from liability under the statute?

The FCC subsequently not only took no action relating to predictive dialers, but proceeded to take increased action against users of predictive dialers over

the course of the next twenty-three years, starting

with the 1992 FCC Order. In 2003, the FCC issued a

more comprehensive order relating to predictive

dialers with specificity. In re Rules and Regulations

Implementing the Telephone Consumer Protection

Act of 1991, Report and Order, 18 FCC Rcd. 14014,

18

14115 ¶¶ 131-134 (2003) (“2003 FCC Order”). There,

the FCC describes a predictive dialer as follows:

A predictive dialer is an automated dialing system that uses a complex set of

algorithms to automatically dial consumers’ telephone numbers in a manner

that “predicts” the time when a consumer will answer the phone and a telemarketer will be available to take the call.

Such software programs are set up in

order to minimize the amount of downtime for a telemarketer. In some instances, a consumer answers the phone

only to hear “dead air” because no telemarketer is free to take the call

…

a predictive dialer is equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales

agent will be available to take calls.

…

Predictive dialers initiate phone calls

while telemarketers are talking to other

consumers and frequently disconnect

those calls when a telemarketer is unavailable

to

take

the

next

call…Predictive dialers reduce the

amount of down time for sales agents,

as consumers are more likely to be on

the line when the telemarketer completes a call.

See 2003 FCC Order at ¶¶ 8 fn 31, 131, and 146.

Such a description bears striking resemblance to

19

the technology described above that was present in

the 1970s, 1980s, and which was described by Robert

Bulmash during the Senate hearings, as well as that

which is described in the comments to the FCC prior

to the 1992 FCC Order. That is because the technology had not changed in pertinent part – it is still operating the same way as it always has. It is also

worth noting that abandoned calls are exclusive to

predictive dialers, and that the surrounding regulations target such conduct as invidious and unlawful

in other aspects of the statute. See 47 C.F.R. §§

64.1200(a)(5-7). Predictive dialers always have dialed stored lists of numbers, through preprogrammed

automated campaigns, using algorithms that are

based on a preprogrammed abandonment rate entered into the system by its operator. Predictive

dialers are as much ancient technology, as they are

obnoxious.

Simply stated, number self-generation is a red

herring. It is completely historically inaccurate to say

that when the TCPA was enacted, Congress was not

targeting technology which could autodial stored lists

of numbers. It is likewise completely historically inaccurate to say that the FCC’s position on this issue

has changed over the last thirty years. And it is inaccurate as well to suggest that the technology has

changed seismically to the point where this particular prong of the ATDS analysis is and should be

viewed in a different light. While there is yet much

to debate about what the word capacity means,9 in

––––––––––––––––––––––––

9 The Court should leave this debate about capacity for another day, given that Circuit Courts have yet to fully brew this

issue, and given that the FCC is still in revised Rulemaking

(Footnote continued)

20

the context of the TCPA, there is no legitimate debate that with respect to the question of whether an

autodialing system must have the ability to selfgenerate the lists of numbers that it robodials thereafter. The answer is no. The Ninth Circuit got it

right in Marks v Crunch San Diego, LLC.

Interpreting The Definition Of ATDS To Preclude

Dialing Systems That Dial From Stored Lists Would

Render The Consent Requirement Irrelevant

It is an undisputed cornerstone of TCPA litigation

that companies are permitted to autodial people if

they have prior express consent to do so. See 47

U.S.C.A. §§ 227(b)(1)(A) (“It shall be unlawful for any

person within the United States, or any person

outside the United States if the recipient is within

the United States-- (A) to make any call (other than a

call made for emergency purposes or made with the

prior express consent of the called party) using any

automatic telephone dialing system or an artificial or

prerecorded voice”).

Courts and the FCC have

generally held that consent is an affirmative defense

to any otherwise-violative conduct under the TCPA.

Van Patten v. Vertical Fitness Group, LLC, 847 F.3d

1037 (9th Cir. 2017); In the Matter of Rules &

Regulations Implementing the Tel. Consumer Prot.

Act of 1991, 23 F.C.C. Rcd. 559, 565 (Jan. 4, 2008).

An autodialer that is required to self-generate its

own lists of numbers to dial, as opposed to dialing

from a stored list, could never be used in compliance

––––––––––––––––––––––––

discussions after the ACA opinion rejected the 2015 FCC Order

and sent the FCC back to the drawing board.

21

with the TCPA because there is by definition a lack

of consent from an individual whose number is

randomly generated.

These two concepts are

mutually exclusive.

Prior express consent can mean different things

in different contexts. Generally speaking, consent

must be express, i.e. “clearly and unmistakably

stated.” Satterfield v. Simon & Schuster, Inc., 569

F.3d 946, 955 (9th Cir. 2009). In the context of debt

collection, the mere provision of a phone number to a

creditor, in writing or orally, is sufficient to satisfy

the conditions of the defense. Mais v. Gulf Coast

Collection Bureau, Inc., 768 F.3d 1110, 1119–21

(11th Cir. 2014). As the FCC has held, consent may

be provided through an intermediary.

In re

GroupMe, Inc./Skype Commc’ns S.A.R.L. Petition, 29

FCC Rcd. 3442, 3447 (2014). In the context of

solicitation communications, express consent must

adhere to more rigid requirements, including having

to be in writing, as well as meet several additional

stringent disclosure requirements. In re Rules and

Regs. Implementing Tel. Consumer Protection Act of

1991, 27 FCC Rcd. 1830, at 1840 ¶ 25 (Feb. 15, 2012)

(“2012 Order“); 47 C.F.R. §§ 64.1200(f)(1)(8-12); Hill

v. Homeward Residential, Inc., 799 F.3d 544, 552

(6th Cir. 2015) (“the FCC’s regulations for

telemarketers now require a more specific type of

consent—namely, that the called party consents, in

writing, to being called by an auto-dialer.”)

Logistically, it is imperative to note that the

reason companies use autodialers is because they can

reach large numbers of people with very little

expense in labor. For example, a major bank may

wish to send its credit card customers reminders via

automated call or text message letting them know

22

their monthly payment is late. Customers provide

their phone numbers to these legitimate businesses

for legitimate reasons, and those numbers make

their way into the banks’ predictive autodialing

platforms, which are then programmed to send these

reminders in advance of escalating collections

activity. This is, in theory, legitimate robocalling,

because consumers consented to it.

As the FCC has held, including in the 2015 FCC

Order, companies are in the best position to take

measures to ensure that their robodialing campaigns

are reaching the consumers who consented to such

(in many cases) mutually-beneficial communications.

The most basic way this is done is by using

autodialers, such as the predictive dialers described

herein, which only call lists of phone numbers that

were provided by the consumers for the purpose of

receiving such automated communications. This

dynamic is codified in the language of the TCPA, and

also was discussed during the same aforementioned

Senate Hearings. See Senate Testimony at pg. 13

(“The use of automatic dialing machines which play

recorded messages should be reasonably restricted,

except where a called party has given prior consent

to receive the recorded message”). It is also a critical

component of the 2013 telemarketing regulations

regarding the written consent requirements for

marketing calls, as described above.

It is not only fanciful to imagine, but

axiomatically impossible, for there to exist

automated dialing technology that self-generates

lists of numbers, in the same universe where stored

lists of numbers belonging to consumers that have

consented to receive autodialer communications are

being exclusively called. And yet, entire regulatory

23

schemes exist to create standards for what is and is

not prior express consent. Dozens of circuit cases

talk about what it means to consent to a robocall.

The plain language of the statute codifies an

affirmative defense for users of autodialer technology

so long as they call only those people that consent to

receive such calls. Regulations have been adopted.

Responsible companies (including Facebook) spend

billions of dollars annually attempting to comply

with these consent requirements.

Facebook’s own position in other aspects of the

case at hand undermines its view of what constitutes

an ATDS. Facebook’s position is that its texting

platform was designed to send messages only to

users, for verification purposes. Facebook obviously

is trying to reach people who consented to receive

these text messages. Perhaps there are problems

with its system, which led to privacy invasions of

Duguid and others, but putting this aside, Facebook

is trying to contact people who it believes consented

to be contacted in this manner.

Just like a

responsible debt collector trying to contact a debtor.

Just like a responsible telemarketer trying to contact

a customer who actually expressed interest in their

services. Just like a responsible banking institution

notifying their customer of a fraud alert on their

credit card.

Just like an airline notifying a

passenger of a flight delay. Just like a package

service delivery company notifying us that our

package has arrived. When done right, autodialing

can be useful. That is why we can consent to it. But

we cannot consent to autodialing if by axiom

autodialing cannot be performed to a limited list of

those who have so consented. And so it follows that

by requiring self-generation as a component of the

24

statute, Facebook’s definition of ATDS axiomatically

excises an entire canon of codified doctrine right out

of the plain language of the statute. These two

concepts cannot be reconciled.

As this Court has held numerously, reading a

statute in a manner which renders core portions of

the statute mere surplusage should be avoided when

interpreting a statute. See Duncan v. Walker, 533

U.S. 167, 174, (2001) (“We are especially unwilling”

to treat a statutory term as surplusage “when the

term occupies so pivotal a place in the statutory

scheme”). The canon assists “where a competing

interpretation gives effect to every clause and word of

a statute.” Microsoft Corp. v. i4i Ltd. Partnership,

131 S.Ct. 2238, 2240 (2011).

Consent is an inextricable component of the

TCPA, as it is in any invasion of privacy statute,

because it is not an invasion of privacy if it has been

permitted. Guests are not intruders by virtue of

their mere presence in one’s homes. Yet the plain

language of the TCPA can clearly be read two ways

with respect to whether or not an ATDS must selfgenerate the numbers it autodials.

While it is true that the canon against superfluity

is not absolute (Lamie v. U.S. Trustee, 540 U.S. 526,

536 (2004)), it is likewise true that there exists a

reading of the TCPA where autodialers do not selfgenerate lists, as the D.C. Circuit recognized in ACA,

and multiple Circuit Courts have held as well. But

there is no TCPA without the affirmative defense of

consent, and consent cannot coexist with autodialers

that cannot dial stored lists of numbers. Therefore,

this case represents an ideal candidate for

application of the canon against superfluity.

25

CONCLUSION

For the foregoing reasons, any interpretation of

the TCPA’s definition of ATDS which precludes a

finding that a predictive dialer is an autodialer, or

which results in rendering the consent requirements

mere surplusage are wrong, plain and simple. This

can be demonstrated by a review of the statute as a

whole, by the Legislative History, and by public

comments surrounding the 1992 FCC Rulemaking

interpretation of the ATDS standard.

If our goal is to ensure that the policies underlying the TCPA are advanced by an expansive definition of the statute that protects consumer privacy,

then even Facebook would agree with the positions

advanced herein. But if our goals are more narrowly

tailored towards a strict interpretation of the static

law that was enacted in 1991, so as to parse what

Congress originally meant when it defined an ATDS,

the answer is no less clear when analyzed in the historical context of the technology and concerns of the

time. Either way, Facebook’s reading is wrong, as a

matter of syntax, as a matter of context, as a matter

of history, and as a matter of policy. It is right in no

aspect, and the Ninth Circuit’s holding in Duguid

and by extension in Marks should be upheld in pertinent part.

26

Respectfully submitted,

KAZEROUNI

LAW GROUP, APC

Abbas Kazerounian, Esq.

Counsel of Record

Jason A. Ibey, Esq.

245 Fischer Avenue, D1

Costa Mesa,

California 92626

Phone: (800) 400-6808

ak@kazlg.com

jason@kazlg.com

October 23, 2020

LAW OFFICES OF TODD

M. FRIEDMAN, P.C.

Todd M. Friedman, Esq.

Adrian R. Bacon, Esq

Thomas E. Wheeler

21550 Oxnard St., Ste. 780

Woodland Hills, CA 91367

Phone: (877) 206-4741

tfriedman@toddflaw.com

abacon@toddflaw.com

twheeler@toddflaw.com