Amicus Curiae Brief — Facebook, Inc., Petitioner v. Noah Duguid, et al.
Supreme Court briefOct 23, 2020
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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 NORTH CAROLINA, INDIANA,
AND 35 OTHER STATES
AND THE DISTRICT OF COLUMBIA
AS AMICI CURIAE IN SUPPORT OF RESPONDENT
________________________________________________________________________
CURTIS T. HILL, JR.
Indiana Attorney General
THOMAS M. FISHER
Solicitor General
KIAN J. HUDSON
Deputy Solicitor General
JULIA C. PAYNE
Deputy Attorney General
OFFICE OF THE INDIANA
ATTORNEY GENERAL
302 W. Washington St.
Indianapolis, IN 46204
(317) 232-6255
Tom.Fisher@atg.in.gov
JOSHUA H. STEIN
Attorney General
RYAN Y. PARK
Solicitor General
Counsel of Record
NICHOLAS S. BROD
Assistant Solicitor
General
NC DEPARTMENT OF
JUSTICE
Post Office Box 629
Raleigh, NC 27602
(919) 716-6400
rpark@ncdoj.gov
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... ii
INTEREST OF AMICI STATES ............................... 1
SUMMARY OF THE ARGUMENT ........................... 5
ARGUMENT .............................................................. 7
I.
Under The TCPA, An Automatic
Telephone Dialing System Includes
Devices That Dial Telephone Numbers
From A Stored List .................................... 7
A. The plain text supports
respondent’s reading of the statute ..... 7
B. When Congress passed the TCPA in
1991, the ordinary meaning of an
automatic telephone dialing system
did not depend on the use of a
random or sequential number
generator ............................................. 12
II.
Facebook’s Parade-Of-Horribles
Argument Is Unpersuasive...................... 20
III.
Facebook’s Interpretation Of The
TCPA Would Also Hinder State
Enforcement Efforts ................................. 22
CONCLUSION ......................................................... 24
ADDITIONAL COUNSEL ....................................... 26
ii
TABLE OF AUTHORITIES
Cases
Arkansas v. Rising Eagle Capital Grp. LLC, Inc.,
No. 4:20-cv-2021 (S.D. Tex. 2020) ....................... 23
Allan v. Pennsylvania Higher Educ. Assistance
Agency,
968 F.3d 567 (6th Cir. 2020) ...................... 9, 10, 11
Barr v. Am. Ass’n of Political Consultants, Inc.,
140 S. Ct. 2335 (2020) ............................................ 1
Bostock v. Clayton Cty.,
140 S. Ct. 1731 (2020) .................................... 12, 21
Duncan v. Walker,
533 U.S. 167 (2001) .............................................. 10
Duran v. La Boom Disco, Inc.,
955 F.3d 279 (2d Cir. 2020) ....................... 9, 10, 11
FTC v. First Choice Horizon LLC,
No. 6:19-cv-1028 (M.D. Fla. 2019) ......................... 8
Gadelhak v. AT&T Servs., Inc.,
950 F.3d 458 (7th Cir. 2020) .................................. 9
Glasser v. Hilton Grand Vacations Co.,
948 F.3d 1301 (11th Cir. 2020)........................ 9, 10
Harris v. World Fin. Network Nat. Bank,
867 F. Supp. 2d 888 (E.D. Mich. 2012) ............... 20
Johnson v. Navient Sols., Inc.,
315 F.R.D. 501 (S.D. Ind. 2016) .......................... 20
Marks v. Crunch San Diego, LLC,
904 F.3d 1041 (9th Cir. 2018) .................... 9, 10, 11
iii
Marx v. Gen. Rev. Corp.,
568 U.S. 371 (2013) .............................................. 11
New Prime Inc. v. Oliveira,
139 S. Ct. 532 (2019) ...................................... 12, 14
Olney v. Progressive Cas. Ins. Co.,
993 F. Supp. 2d 1220 (S.D. Cal. 2014) ................ 20
Patriotic Veterans, Inc. v. Indiana,
736 F.3d 1041 (7th Cir. 2013) .............................. 14
Riley v. California,
573 U.S. 373 (2014) .............................................. 20
Rimini Street, Inc. v. Oracle USA, Inc.,
139 S. Ct. 873 (2019) ............................................ 10
United States v. Dish Network LLC,
954 F.3d 970 (7th Cir. 2020) ................................ 23
Virginia ex rel. Herring v. Skyline Metrics, LLC,
No. 7:19-cv-463 (W.D. Va. 2019) ......................... 22
Statutes
47 U.S.C. § 227(a)(1) .............................................. 3, 7
47 U.S.C. § 227(b)(1) ................................................ 21
47 U.S.C. § 227(b)(1)(A) ............................3, 11, 12, 13
47 U.S.C. § 227(f)(1) ............................................. 4, 14
47 U.S.C. § 227(g)(1) ................................................ 13
Ala. Code §§ 8-19A-3, -15 ........................................... 4
Ariz. Rev. Stat. Ann. § 44-1278(B)(5) ........................ 4
Ariz. Rev. Stat. Ann. § 13-2918(A) (1986) ............... 14
Ark. Code Ann. § 5-63-204(a)(1) ................................ 4
iv
Ark. Code Ann. § 5-63-204(a)(1) (1981) ................... 14
Cal. Pub. Util. Code § 2871 (1980) .......................... 15
Cal. Pub. Util. Code §§ 2871-2876 ............................. 4
Colo. Rev. Stat. Ann. § 18-9-311(1) ........................... 4
Colo. Rev. Stat. Ann. § 18-9-311(1) (1988) .............. 14
Conn. Gen. Stat. § 42-288a(h) ................................... 4
Conn. Gen. Stat. § 52-570c(a) (1990) ....................... 14
D.C. Code § 34-1701 ................................................... 4
D.C. Code § 34-1701(a)(1) (1991) ............................. 16
Del. Code Ann. tit. 15, § 8045A ................................. 4
Fla. Stat. § 501.059 .................................................... 4
Fla. Stat. § 501.059(7)(a) (1991) .............................. 14
Ga. Code Ann. § 46-5-23 ............................................ 4
Ga. Code Ann. § 46-5-23(a)(1) (1990) ...................... 16
Idaho Code Ann. § 48-1003C ..................................... 4
815 Ill. Comp. Stat. § 305/5(a) (1991) ...................... 17
815 Ill. Comp. Stat. §§ 305/1 to /30............................ 4
Ind. Code § 24-5-14-1 (1988) .................................... 16
Ind. Code §§ 24-5-14-1 to -13 ..................................... 4
Iowa Code § 476.57(1) (1991) ................................... 16
Kan. Stat. Ann. § 50-670 ............................................ 4
Kan. Stat. Ann. § 50-670(a)(5) (1991)...................... 15
Ky. Rev. Stat. Ann. §§ 367.461 to .469 ...................... 4
La. Rev. Stat. Ann. § 45:810(B)(1) (1991) ............... 16
v
La. Rev. Stat. Ann. §§ 45:810 to :817 ........................ 4
Mass. Gen. Laws ch. 159, § 19B (1986) ................... 15
Mass. Gen. Laws ch. 159, §§ 19B-19D ...................... 4
Md. Code Ann., Pub. Util. § 8-204 ............................. 4
Me. Rev. Stat. Ann. tit. 10, § 1498 ............................ 4
Me. Rev. Stat. Ann. tit. 10, § 1498(1)(A) (1990) ...... 16
Mich. Comp. Laws § 484.125(4) (1980) ................... 14
Mich. Comp. Laws §§ 445.111(g), 484.125 ................ 4
Minn. Stat. § 325E.26(2) (1987)............................... 16
Minn. Stat. §§ 325E.26 to .31 .................................... 4
Miss. Code Ann. § 77-3-451 (1989) .......................... 15
Miss. Code Ann. §§ 77-3-451 to -459 ......................... 4
Mont. Code Ann. §§ 30-14-1601 to -1606 .................. 4
N.C. Gen. Stat. § 75-104 ............................................ 4
N.C. Gen. Stat. § 75-30(c) (1979) ............................. 15
N.D. Cent. Code §§ 51-28-02, -04............................... 4
N.H. Rev. Stat. Ann. § 359-E:1(I) (1989) ................. 17
N.H. Rev. Stat. Ann. §§ 359-E:1 to :6 ........................ 4
N.J. Stat. Ann. §§ 48:17-27 to -31.............................. 4
N.M. Stat. Ann. § 57-12-22 ........................................ 4
N.M. Stat. Ann. § 57-12-22(A) (1989) ...................... 14
N.Y. Gen. Bus. Law § 399-p ....................................... 4
N.Y. Gen. Bus. Law § 399-p (1988) ......................... 15
Neb. Rev. Stat. §§ 86-236 to -257 .............................. 4
vi
Nev. Rev. Stat. § 597.814 (1989) ............................. 14
Nev. Rev. Stat. §§ 597.812 to .818 ............................. 4
Okla. Stat. tit. 15, § 755.1 .......................................... 5
Okla. Stat. tit. 15, § 752(10) (1991) ......................... 15
Or. Rev. Stat. § 759.290(3)(a) (1989) ....................... 16
Or. Rev. Stat. §§ 646A.370 to .376............................. 5
52 Pa. Code § 63.1 (1988) ......................................... 15
73 Pa. Stat. Ann. §§ 2241-2249 ................................. 5
R.I. Gen. Laws § 11-35-26(b) (1987) ........................ 15
R.I. Gen. Laws § 5-61-3.4 ........................................... 5
S.C. Code Ann. § 16-17-446(A) (1991) ..................... 16
S.D. Codified Laws § 37-30-23 (1991)...................... 17
S.D. Codified Laws §§ 37-30-23 to -29 ....................... 5
Tenn. Code Ann. § 47-18-1501(b)(1) (1990) ............. 16
Tenn. Code Ann. §§ 47-18-1501 to -1527................... 5
Tex. Util. Code §§ 55.121 to .138 ............................... 5
16 Tex. Admin. Code § 23.32(a) (1986) .................... 16
Utah Code Ann. §§ 13-25a-101 to -111 ...................... 5
Va. Code Ann. §§ 59.1-518.1 to .4 .............................. 5
Vt. Stat. Ann. tit. 9, § 2511 ........................................ 5
Wash. Rev. Code § 80.36.400 ..................................... 5
Wash. Rev. Code § 80.36.400(1)(a) (1987) ............... 16
Wyo. Stat. Ann. § 6-6-104(a) (1987) ........................ 14
vii
Other Authorities
Fed. Commc’ns Comm’n, COVID-19 Robocall
Scams (July 17, 2020), https://bit.ly/2ZVbDhG .... 2
Fed. Trade Comm’n, Call It Quits: Robocall
Crackdown 2019 (June 2019),
http://bit.ly/2wxX0F9 ............................................. 2
Fed. Trade Comm’n, Report to Congress:
Protecting Older Consumers (Oct. 18, 2019),
https://bit.ly/3ne7aRh ............................................ 8
H.R. Rep. No. 102-317 (1991) .................................. 13
Anya Kamenetz, It’s a Smartphone Life: More
Than Half of U.S. Children Now Have One,
NPR (Oct. 31, 2019), https://n.pr/3o9apKd ......... 21
Sarah O’Brien, Robocalls Are Spiking as
Fraudsters Prey on Covid-19 Fears, CNBC
(May 19, 2020), https://cnb.cx/2RJjydi .................. 1
Oxford English Dictionary (2d ed. 1989) ................. 10
S. Rep. No. 102-178 (1991), reprinted in 1991
U.S.C.C.A.N. 1968 ..................................... 3, 13, 19
1
INTEREST OF AMICI STATES1
The States of North Carolina, Indiana, Alaska,
Arizona, Arkansas, California, Colorado, Connecticut,
Delaware, Hawaii, Idaho, Illinois, Iowa, Kansas,
Kentucky,
Louisiana,
Maine,
Maryland,
Massachusetts, Michigan, Minnesota, Mississippi,
Nevada, New Hampshire, New Jersey, New York,
North
Dakota,
Ohio,
Oklahoma,
Oregon,
Pennsylvania, Rhode Island, Tennessee, Vermont,
Virginia, Washington, and Wisconsin, and the District
of Columbia, respectfully submit this brief as amici
curiae in support of respondent Noah Duguid.
As this Court recognized last Term, the States
“field a constant barrage of complaints” about
robocalls. Barr v. Am. Ass’n of Political Consultants,
Inc., 140 S. Ct. 2335, 2343 (2020) (plurality opinion).
This case is about a telephone technology that
generates this barrage of complaints to States across
the country: the automatic telephone dialing system,
also known as an autodialer. An autodialer calls
telephone numbers at a rapid clip, bombarding
consumers with live or prerecorded messages.
Unsurprisingly, autodialers often find themselves
at the center of telemarketing scams. This is true now
more than ever, with the COVID-19 pandemic
unleashing a torrent of telephone fraud. See Sarah
No counsel for any party authored this brief, in whole or in
part, and no person or entity other than amici contributed
monetarily to its preparation.
1
2
O’Brien, Robocalls Are Spiking as Fraudsters Prey on
Covid-19
Fears,
CNBC
(May
19,
2020),
https://cnb.cx/2RJjydi. In a shameless effort to profit
off a public-health crisis, telemarketing schemes have
falsely promised anxious consumers everything from
free testing, to financial help, to miracle cures. Fed.
Commc’ns Comm’n, COVID-19 Robocall Scams (July
17, 2020), https://bit.ly/2ZVbDhG.
States are on the front lines in the fight to prevent
these and other abuses of telephone technology.
Indeed, States frequently invoke their authority
under the Telephone Consumer Protection Act of 1991
(TCPA), 47 U.S.C. § 227, as well as overlapping state
laws, to sue robocallers who misuse autodialers. See
Fed. Trade Comm’n, Call It Quits: Robocall
Crackdown 2019 (June 2019), http://bit.ly/2wxX0F9
(summarizing recent federal and state enforcement
actions). Invoking a federal law allows States to
collaborate with other States and the federal
government to bring joint TCPA enforcement actions
in federal court. The TCPA therefore gives States a
way to pool their resources against particularly
abusive robocallers. In some circumstances, that type
of collaboration can be more efficient and effective
than individual States proceeding separately against
robocallers under separate state laws.
While States use the TCPA as a critical tool to
protect consumers from illegal and fraudulent calls,
Facebook threatens to undermine that effort. The
TCPA generally prohibits the use of “any automatic
telephone dialing system or an artificial or
3
prerecorded voice” to make a call to numbers assigned
to a cellular telephone service. 47 U.S.C.
§ 227(b)(1)(A). An automatic telephone dialing
system, in turn, is defined as “equipment which has
the capacity—(A) to store or produce telephone
numbers to be called, using a random or sequential
number generator; and (B) to dial such numbers.” Id.
§ 227(a)(1).
Under petitioner’s reading of the TCPA’s
autodialer definition, however, the statute would
cover only a narrow subset of autodialers—those that
use a random or sequential number generator. This
cramped interpretation would hamper State efforts to
enforce the TCPA and to protect consumers from
illegal calls. It would also allow robocallers to easily
evade the statute’s prohibitions. The better reading of
the TCPA recognizes that an automatic telephone
dialing system can include any device with the
capacity to store and dial numbers automatically,
regardless of whether it uses a random or sequential
number generator.
The States speak from experience. Congress
enacted the TCPA in part at the behest of the States,
who feared that their own telephone privacy laws
might prove inadequate to fully address interstate
telephone fraud and abuse. S. Rep. No. 102-178, at 3
(1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1970.
Every state statute on the books when Congress
passed the TCPA in 1991 defined the term automatic
telephone dialing system in a way that would have
included a device—like petitioner’s—with the
4
capacity to store and dial numbers, even if the device
did not use a random or sequential number generator.
And Congress explicitly enacted the TCPA to reinforce
these preexisting state autodialer bans. Amici States
therefore seek to vindicate the original understanding
of the TCPA so that they can continue to protect
consumers from the harms caused by illegal telephone
calls, including those placed using autodialer devices
of all kinds.
In addition, because the TCPA expressly disclaims
federal preemption of state telephone privacy laws, 47
U.S.C. § 227(f)(1), at least forty-one States and the
District of Columbia currently have enforceable
prohibitions or restrictions on the use of autodialer
devices.2 As a result, the Amici States also have a
See, e.g., Ala. Code §§ 8-19A-3, -15; Ariz. Rev. Stat. Ann. § 441278(B)(5); Ark. Code Ann. § 5-63-204(a)(1); Cal. Pub. Util. Code
§§ 2871-2876; Colo. Rev. Stat. Ann. § 18-9-311(1); Conn. Gen.
Stat. § 42-288a(h); Del. Code Ann. tit. 15, § 8045A; D.C. Code
§ 34-1701; Fla. Stat. § 501.059; Ga. Code Ann. § 46-5-23; Idaho
Code Ann. § 48-1003C; 815 Ill. Comp. Stat. §§ 305/1 to /30; Ind.
Code §§ 24-5-14-1 to -13; Kan. Stat. Ann. § 50-670; Ky. Rev. Stat.
Ann. §§ 367.461 to .469; La. Rev. Stat. Ann. §§ 45:810 to :817;
Me. Rev. Stat. Ann. tit. 10, § 1498; Md. Code Ann., Pub. Util. § 8204; Mass. Gen. Laws ch. 159, §§ 19B-19D; Mich. Comp. Laws
§§ 445.111(g), 484.125; Minn. Stat. §§ 325E.26 to .31; Miss. Code
Ann. §§ 77-3-451 to -459; Mont. Code Ann. §§ 30-14-1601 to
-1606; Neb. Rev. Stat. §§ 86-236 to -257; Nev. Rev. Stat.
§§ 597.812 to .818; N.H. Rev. Stat. Ann. §§ 359-E:1 to :6; N.J.
Stat. Ann. §§ 48:17-27 to -31; N.M. Stat. Ann. § 57-12-22; N.Y.
Gen. Bus. Law § 399-p; N.C. Gen. Stat. § 75-104; N.D. Cent. Code
2
5
strong interest in ensuring that this Court preserves
their ability—under state law, as well as federal law—
to protect their citizens from the harms caused by
automatic telephone dialing systems. They therefore
urge this Court to affirm the judgment of the Ninth
Circuit.
SUMMARY OF THE ARGUMENT
Amici States acknowledge that the TCPA’s
definition of an automatic telephone dialing system is
susceptible to multiple, plausible interpretations. As
the thorough and thoughtful court of appeals
decisions on this issue show, the autodialer definition
is hardly a model of clarity.
Amici States respectfully submit, however, that
respondent has the better reading of the TCPA based
on the statute’s plain text. Importantly, respondent’s
interpretation is the only reading of the autodialer
definition that is consistent with the ordinary
meaning of the definition’s two key verbs: “store” and
“produce.” Moreover, this interpretation avoids
rendering another portion of the TCPA superfluous.
§§ 51-28-02, -04; Okla. Stat. tit. 15, § 755.1; Or. Rev. Stat.
§§ 646A.370 to .376; 73 Pa. Stat. Ann. §§ 2241-2249; R.I. Gen.
Laws § 5-61-3.4; S.D. Codified Laws §§ 37-30-23 to -29; Tenn.
Code Ann. §§ 47-18-1501 to -1527; Tex. Util. Code §§ 55.121 to
.138; Utah Code Ann. §§ 13-25a-101 to -111; Vt. Stat. Ann. tit. 9,
§ 2511; Va. Code Ann. §§ 59.1-518.1 to .4; Wash. Rev. Code
§ 80.36.400.
6
The original meaning of the TCPA when the
statute was passed in 1991 also supports respondent’s
position. Congress enacted the TCPA in part out of
concern that state consumer-protection laws might
prove ineffective to fully address interstate telephone
fraud and abuse. Every state statute that defined the
term automatic telephone dialing system in 1991
understood that term to reach devices with the
capacity to store and dial numbers from a
predetermined list, regardless of whether a random or
sequential number generator was used. Thus, it would
have made little sense for Congress to intentionally
depart from these state laws by adopting a narrower
definition of an autodialer device in the TCPA. After
all, it was Congress’s explicit aim to supplement—not
to shrink—preexisting state laws.
Moreover, Facebook’s interpretation of the TCPA
would lead to negative consequences. Narrowing the
autodialer definition would harm the ability of States
to protect consumers by collaborating with other
States and the federal government to sue TCPA
violators in federal court.
For these reasons, the Court should affirm the
judgment of the Ninth Circuit.
7
ARGUMENT
I. Under The TCPA, An Automatic Telephone
Dialing System Includes Devices That Dial
Telephone Numbers From A Stored List.
A. The plain text supports respondent’s
reading of the statute.
Amici States acknowledge that the TCPA’s
definition of an automatic telephone dialing system
is susceptible to multiple, plausible interpretations,
but respectfully submit that respondent advances
the most persuasive reading of the statute’s plain
text.
The TCPA defines an automatic telephone dialing
system 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 here is: what word or words does the
participial phrase “using a random or sequential
number generator” modify?
Respondent contends that the participial phrase
modifies only the verb “produce.” Under that reading,
the TCPA would cover devices with the capacity to
(1) store telephone numbers to be called and dial
them; or (2) produce telephone numbers to be called,
using a random or sequential number generator, and
dial them. In other words, a device would not need to
use a random or sequential number generator to
qualify as an autodialer. For example, a device that
stores and dials telephone numbers from a targeted
8
list—say, a list of older individuals, who are most
likely to fall prey to a telemarketing scam—would fall
within the definition.3
By contrast, petitioner argues that the participial
phrase modifies both the verb “produce” and the verb
“store.” Under that reading, the TCPA would cover
devices with the capacity to (1) store telephone
numbers to be called, using a random or sequential
number generator, and dial them; or (2) produce
telephone numbers to be called, using a random or
sequential number generator, and dial them. In other
words, only devices that use a random or sequential
number generator would qualify as an autodialer. For
example, a device that stores and dials telephone
numbers from a targeted list—say, a list of financially
distressed consumers whose personal financial
information might be especially susceptible to being
stolen—would fall outside the definition.4 Or consider
a more ambitious device that stores and then dials at
random numbers from a list of every assigned U.S. cell
See, e.g., Fed. Trade Comm’n, Report to Congress:
Protecting Older Consumers 6 (Oct. 18, 2019),
https://bit.ly/3ne7aRh (“Phone scams [are] most lucrative
against older consumers,” who “reported that a phone call
was the initial contact method [for fraud] in numbers four
times higher than all other contact methods combined.”).
3
See, e.g., FTC v. First Choice Horizon LLC, No. 6:19-cv1028 (M.D. Fla. 2019) (lawsuit involving a scam of this
kind).
4
9
phone number currently in use. That would fall
outside petitioner’s definition too.
Lower court judges seeking to resolve this
interpretive puzzle have managed to agree only that
the text defies ready interpretation. As Judge Barrett
put it, “[t]he wording of the provision . . . is enough to
make a grammarian throw down her pen.”
Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 460 (7th
Cir. 2020). Judge Sutton has similarly lamented that
“[c]larity . . . does not leap off this page of the U.S.
Code.” Glasser v. Hilton Grand Vacations Co., 948
F.3d 1301, 1306 (11th Cir. 2020) (Sutton, J., sitting by
designation). Judge Ikuta has confessed to “struggling
with the statutory language,” because “it is not
susceptible to a straightforward interpretation based
on the plain language alone.” Marks v. Crunch San
Diego, LLC, 904 F.3d 1041, 1051 (9th Cir. 2018). And
Judge Cabranes has also admitted that “this statutory
language leaves much to interpretation.” Duran v. La
Boom Disco, Inc., 955 F.3d 279, 283 (2d Cir. 2020).
All told, lower court judges faithfully applying
textualist methods of interpretation “have tried to
fashion a plain text reading from these words,” but
have unanimously agreed that each possible
interpretation “has its problems.” Allan v.
Pennsylvania Higher Educ. Assistance Agency, 968
F.3d 567, 572 (6th Cir. 2020).
That said, respondent’s reading of the autodialer
definition is the best interpretation of the statute’s
plain text. Recall that respondent interprets the
participial phrase “using a random or sequential
10
number generator” to modify only the verb “produce,”
not the verb “store.” That interpretation makes sense
as a matter of ordinary English. A number generator,
after all, produces numbers.
By contrast, under petitioner’s reading, the
participial phrase would also modify the verb “store.”
But a number generator cannot be used to store
telephone numbers. Marks, 904 F.3d at 1050, 1052 &
n.8; Duran, 955 F.3d at 284; Allan, 968 F.3d at 572.
Indeed, consulting their plain meanings, a “generator”
does not “store” in any sense of the word. See Oxford
English Dictionary 437 (2d ed. 1989) (defining
“generator” as “[s]omething which generates or
produces” (emphasis added)).
Some courts have reasoned that a number
generator can in fact store telephone numbers
because, in the process of generating a random
number, the device also stores that number—however
briefly. See Glasser, 948 F.3d at 1307. But even if a
generator could store telephone numbers in some
metaphysical sense, that reading in turn creates a
superfluity problem. Why include the verb “store” if
any device that produces numbers stores those
numbers too? Indeed, “[i]t would be odd for Congress
to include both verbs if, together, they merely created
redundancy in the statute.” Duran, 955 F.3d at 284.
This Court ordinarily interprets statutes to avoid
creating redundancies of this kind. See Duncan v.
Walker, 533 U.S. 167, 174 (2001).
To be sure, “[r]edundancy is not a silver bullet.”
Rimini Street, Inc. v. Oracle USA, Inc., 139 S. Ct. 873,
11
881 (2019). But the redundancy caused by petitioner’s
interpretation is far greater than a single superfluous
word. Petitioner’s interpretation would render
superfluous not only the verb “store,” but also an
entire portion of the TCPA’s automated-call
restriction—the statute’s exception for calls “made
with the prior express consent of the called party.” 47
U.S.C. § 227(b)(1)(A). “[C]onsented-to calls by their
nature are calls made to known persons, i.e., persons
whose numbers are stored on a list and were not
randomly generated.” Allan, 968 F.3d at 575
(emphasis added). As a result, if the use of a random
or sequential number generator were required for a
device to qualify as an autodialer, the consent
exception would have no meaningful application. Id.;
accord Marks, 904 F.3d at 1051 (Ikuta, J.) (the
existence of a consent exception “indicates that
equipment that made automatic calls from lists of
recipients was also covered by the TCPA”). And when,
as here, “an interpretation would render superfluous
another part of the same statutory scheme,” “the
canon against surplusage is strongest.” Marx v. Gen.
Rev. Corp., 568 U.S. 371, 386 (2013).
Petitioner argues that even if the consent
exception has no application to calls made using an
autodialer, the exception would still apply to calls
made using a prerecorded or artificial voice. Pet. Br.
40. But “the language of the statute does not make
that distinction.” Duran, 955 F.3d at 285 n.20. The
TCPA says that the consent exception applies to both
calls made using an automatic telephone dialing
12
system and calls made using an artificial or
prerecorded voice. 47 U.S.C. § 227(b)(1)(A). Under
petitioner’s reading of the statute, however, the
consent exception would be irrelevant to an entire
category of calls that the TCPA otherwise prohibits.
In sum, although the TCPA’s autodialer definition
may not be a model of draftsmanship, Amici States
respectfully submit that respondent has the better
reading of the statute’s text.
B. When Congress passed the TCPA in 1991,
the ordinary meaning of an automatic
telephone dialing system did not depend
on the use of a random or sequential
number generator.
Respondent’s position also finds support in how
the term “automatic telephone dialing system” was
understood when Congress passed the TCPA. State
consumer-protection statutes in place at the time
show that the ordinary meaning of an automatic
telephone dialing system did not require the use of a
random or sequential number generator.
It is “a fundamental canon of statutory
construction that words generally should be
interpreted as taking their ordinary meaning at the
time Congress enacted the statute.” New Prime Inc. v.
Oliveira, 139 S. Ct. 532, 539 (2019) (alterations and
quotation marks omitted). The Court therefore
“orient[s] [itself] to the time of the statue’s adoption”
to “examin[e] the key statutory terms.” Bostock v.
13
Clayton Cty., 140 S. Ct. 1731, 1738-39 (2020); see also
id. at 1767 (Alito, J., dissenting).
When Congress passed the TCPA in 1991, it wrote
with the benefit of preexisting state efforts to curb
telemarketing abuses. Indeed, by that time, more
than half the States had already recognized the threat
posed by automated calls and had enacted state laws
to regulate them. S. Rep. No. 102-178, at 3, reprinted
in 1991 U.S.C.C.A.N. 1968, 1970. And Congress
counted more than “43,000 bills touching on the
practice of direct marketing pending before state
legislatures.” H.R. Rep. 102-317, at 10 (1991).
But Congress worried that a federal law was
needed because state laws might prove less than fully
effective at redressing interstate conduct. Given
potential practical difficulties with interstate
enforcement of state law, a committee report
concluded that “federal legislation is needed to . . .
relieve states of a portion of their regulatory burden.”
Id. The States even asked Congress for supplemental
federal legislation. S. Rep. No. 102-178, at 3, reprinted
in 1991 U.S.C.C.A.N. 1968, 1970.
Congress delivered. By enacting the TCPA,
Congress provided a uniform, federal ban on
automated calls. 47 U.S.C. § 227(b)(1)(A). In the
process, Congress also empowered the States, on their
residents’ behalf, to enforce the federal ban by suing
illegal robocallers. Id. § 227(g)(1). And not only did
Congress decline to preempt any state telephone
privacy protections, it expressly saved from
preemption any overlapping or more-stringent state
14
protections. Id. § 227(f)(1); see Patriotic Veterans, Inc.
v. Indiana, 736 F.3d 1041, 1054 (7th Cir. 2013).
As this history shows, Congress designed the
TCPA with state enforcement in mind. It is therefore
all the more appropriate to look at the then-existing
state laws that Congress aimed to supplement as
evidence of the statute’s ordinary meaning. See New
Prime, 139 S. Ct. at 540 (relying in part on
contemporaneous state statutes for evidence of a
federal law’s ordinary meaning).
Here is a survey of the 1991 state-law landscape.
At least thirty-two States and the District of Columbia
imposed some kind of prohibition on the improper use
of autodialers. Nine of those States did not define the
term.5 The remaining States used one of four different
formulations:
At least ten States defined an autodialer as a
device that (1) stored numbers to be called; or
Ariz. Rev. Stat. Ann. § 13-2918(A) (1986); Ark. Code Ann. § 563-204(a)(1) (1981); Colo. Rev. Stat. Ann. § 18-9-311(1) (1988);
Conn. Gen. Stat. § 52-570c(a) (1990); Fla. Stat. § 501.059(7)(a)
(1991); Nev. Rev. Stat. § 597.814 (1989); N.M. Stat. Ann. § 57-1222(A) (1989); Wyo. Stat. Ann. § 6-6-104(a) (1987); cf. Mich. Comp.
Laws § 484.125(4) (1980) (use of “automated dialing” is prima
facie evidence of intent to violate prohibition on commercial
advertising by prerecorded message).
5
15
(2) produced numbers to be called, using a
random number generator.6
Cal. Pub. Util. Code § 2871 (1980) (“any automatic
equipment which incorporates a storage capability of telephone
numbers to be called or a random or sequential number
generator capable of producing numbers to be called”); Kan. Stat.
Ann. § 50-670(a)(5) (1991) (“any user terminal equipment
which . . . [w]hen connected to a telephone line can dial, with or
without manual assistance, telephone numbers which have been
stored or programmed in the device or are produced or selected
by a random or sequential number generator”); Mass. Gen. Laws
ch. 159, § 19B (1986) (“any automatic terminal equipment which
is capable of storing numbers to be called or producing numbers
to be called, using a random or sequential number generator”);
Miss. Code Ann. § 77-3-451 (1989) (“any automatic equipment
which incorporates a storage capability of telephone numbers to
be called or a random or sequential number generator capable of
producing numbers to be called”); N.Y. Gen. Bus. Law § 399-p
(1988) (“any automatic equipment which incorporates a storage
capability of telephone numbers to be called or a random or
sequential number generator capable of producing numbers to be
called”); N.C. Gen. Stat. § 75-30(c) (1979) (“any automatic
equipment which incorporates a storage capability of telephone
numbers to be called or a random or sequential number
generator capable of producing numbers to be called”); Okla.
Stat. tit. 15, § 752(10) (1991) (“automatic equipment that . . .
stores telephone numbers to be called, or has a random or
sequential number generator capable of producing numbers to be
called”); 52 Pa. Code § 63.1 (1988) (“[a]utomatic equipment used
for solicitation which has a storage capability of multiple
numbers to be called or a random or sequential number
generator that produces numbers to be called . . . .”); R.I. Gen.
Laws § 11-35-26(b) (1987) (“any automatic terminal equipment
6
16
At least nine States did not use either the verb
“store” or the verb “produce” to define an
autodialer. Instead, these States used verbs
like “select” and “dial,” without any reference to
a random or sequential number generator.7
At least one State and the District of Columbia
defined an autodialer only by looking to the
device’s ability to “convey” or “deliver” a
prerecorded message, again without any
reference to a random or sequential number
generator.8
And finally, at least three States defined an
autodialer as a device that could store or
produce numbers that were then called
randomly or sequentially. Under these state
which is capable of storing numbers to be called or producing
numbers to be called, using a random or sequential number
generator”); 16 Tex. Admin. Code § 23.32(a) (1986) (“automatic
equipment . . . that is capable of storing numbers to be called, or
has a random or sequential number generator capable of
producing numbers to be called”).
Ga. Code Ann. § 46-5-23(a)(1) (1990); Ind. Code § 24-5-14-1
(1988); Iowa Code § 476.57(1) (1991); La. Rev. Stat. Ann.
§ 45:810(B)(1) (1991); Me. Rev. Stat. Ann. tit. 10, § 1498(1)(A)
(1990); Minn. Stat. § 325E.26(2) (1987); Or. Rev. Stat.
§ 759.290(3)(a) (1989); Tenn. Code Ann. § 47-18-1501(b)(1)
(1990); Wash. Rev. Code § 80.36.400(1)(a) (1987).
7
D.C. Code § 34-1701(a)(1) (1991); S.C. Code Ann. § 16-17446(A) (1991).
8
17
laws, “randomly” and “sequentially” were
adverbs used to describe how a call was placed,
rather than adjectives used to describe a
“number generator.”9 A number generator was
not mentioned in these state laws at all.
Although these definitions varied substantially,
they shared a common, critical feature: when
Congress passed the TCPA, every state law that
defined the term “autodialer” included a device with
the capacity to store numbers to be called
automatically, regardless of whether the device used
a random or sequential number generator.
Pre-1991 state statutes therefore show that the
ordinary understanding of an automatic telephone
dialing system at the time Congress enacted the
TCPA did not depend on the device’s use of a random
or sequential number generator. And as explained
below, Congress explicitly acted against the backdrop
of these state laws by passing a federal standard to
supplement, not displace, preexisting state standards.
See pp 18-19, infra. This history confirms that
815 Ill. Comp. Stat. § 305/5(a) (1991) (“any telephone dialing
or accessing device, machine, computer or system capable of
storing telephone numbers which is programmed to sequentially
or randomly access the stored telephone numbers”); N.H. Rev.
Stat. Ann. § 359-E:1(I) (1989) (“any automatic terminal
equipment which stores or produces numbers to be called
randomly or sequentially”); S.D. Codified Laws § 37-30-23 (1991)
(same).
9
18
respondent’s interpretation of the TCPA is consistent
with the statute’s original meaning.
Supporting petitioner, the United States
acknowledges some of this history, but draws
precisely the wrong conclusion from it. According to
the United States, Congress could have adopted any
of the state-law autodialer definitions in place at the
time, but chose not to. As a result, the United States
contends, the TCPA’s definition of an automatic
telephone dialing system must necessarily be
narrower than the definitions used in predecessor
state laws. U.S. Br. 27-28. The United States
therefore reads the statute to cover only devices using
a random or sequential number generator. U.S. Br.
27.
It is true that the TCPA’s autodialer definition
differs from any of the contemporaneous state-law
definitions. U.S. Br. 27-28. But as shown above, the
state laws themselves were scattered, offering various
formulations for what it meant for a device to qualify
as an autodialer. So, it should come as little surprise
that Congress chose not to adopt wholesale any
specific state-law definition. There simply was no
prevailing state-law model for Congress to replicate.
Instead, Congress drafted language to accomplish
the same result as these disparate state laws. As
explained above, the best reading of the TCPA’s text
is that an autodialer is a device with the capacity to
(1) store telephone numbers to be called; or (2) produce
telephone numbers to be called, using a random or
sequential number generator. See pp 7-12, supra.
19
That was the most common formulation of the term
among pre-TCPA state laws. See pp 15-16 n.6, supra.
The prevalence of that definition among the state
laws, which Congress sought to supplement, counsels
in favor of reading the TCPA to be consistent with
those preexisting laws.
The statute’s enactment history supports this view
as well. Congress passed the TCPA amid requests
from the States for a federal automated-call
restriction that would strengthen their own
enforcement efforts. And the explicit aim of the
legislation was to supplement—not shrink—the
protections against autodialers that so many States
already had in place. S. Rep. No. 102-178, at 3,
reprinted in 1991 U.S.C.C.A.N. 1968, 1970.
No state law on the books in 1991 required an
autodialer to use a random or sequential number
generator. It is therefore implausible that Congress—
solicitous as it was of the compelling interests States
have in protecting citizens from telephone abuse and
fraud—would have adopted an autodialer definition
so much more circumscribed than the definitions state
laws were using at the time.
In sum, state laws prior to the TCPA’s passage
show that the ordinary meaning of an automatic
telephone dialing system in 1991 did not require the
use of a random or sequential number generator.
Thus, respondent’s reading of the autodialer
definition is the only interpretation that is consistent
with how that term was understood when Congress
enacted the TCPA.
20
II. Facebook’s Parade-of-Horribles Argument
Is Unpersuasive.
Facebook resists respondent’s textualist reading
of the TCPA by pointing to consequences. But the
consequences of respondent’s interpretation of the
TCPA would not be “catastrophic,” as Facebook
claims. See Pet. Br. 45.
Facebook argues that imposing TCPA liability for
the kind of “sensible, but inherently fallible, business
practices” at issue here would go beyond the scope of
Congress’s concerns when it passed the TCPA. Pet.
Br. 45. But repeatedly sending “security alerts” to
phone numbers not connected with a Facebook
account is hardly “sensible”—indeed, it is abusive. It
is well-established that individuals have an
expectation of privacy in their cell phones. See Riley
v. California, 573 U.S. 373, 386 (2014). Congress
designed the TCPA to safeguard privacy interests of
this kind. See, e.g., Olney v. Progressive Cas. Ins. Co.,
993 F. Supp. 2d 1220, 1227 (S.D. Cal. 2014) (denying
motion to dismiss TCPA action where defendants
repeatedly called wrong number); Harris v. World
Fin. Network Nat. Bank, 867 F. Supp. 2d 888, 895-96
(E.D. Mich. 2012) (holding that plaintiff was entitled
to treble damages for calls defendants made after
plaintiff informed them that they were calling the
wrong number); Johnson v. Navient Sols., Inc., 315
F.R.D. 501, 502 (S.D. Ind. 2016) (holding that
“because the Act prohibits automated calls to any cell
phone number, once the user of that phone notifies
21
the originating entity that there is a wrong number,
those calls must stop”).
At bottom, Facebook’s consequentialist argument
is not really about protecting college students and
their communication habits, see Pet. Br. 45, but about
“updating” the TCPA through judicial decree. Perhaps
the TCPA is indeed outdated in many ways. When
Congress passed it nearly thirty years ago, calls to cell
numbers cost the recipient money, which is why cold
calls to cell numbers, but not landlines, are
prohibited. 47 U.S.C. § 227(b)(1). Now, of course, most
cell phone plans offer unlimited calls and texts,
meaning that cost structures for cell phones more
closely resemble those for landlines. In addition,
smart phones did not exist in 1991, and only a highly
capitalized telemarketer would have possessed a
high-tech device that could store and dial telephone
numbers. Nowadays, a majority of middle-school
students have access to such technology in their
pocket.10 Yet, as the Court reinforced just last Term,
the Court applies the text of statutes as written and
does not update them to fit the times—it leaves that
role to Congress. See Bostock, 140 S. Ct. at 1738 (“If
judges could add to, remodel, update, or detract from
old statutory terms inspired only by extratextual
sources and our own imaginations, we would risk
See, e.g., Anya Kamenetz, It’s a Smartphone Life: More
Than Half of U.S. Children Now Have One, NPR (Oct. 31,
2019), https://n.pr/3o9apKd.
10
22
amending statutes outside the legislative process
reserved for the people’s representatives.”).
Even as the options grow for ordinary people to
contact others without using telephone numbers,
robocalls to cell numbers persist. Robocallers rely on
cheap phone-number databases and cheap calling
technology, even with a low hit rate, to make a profit.
The TCPA therefore remains relevant. The Court
should reject Facebook’s attempt to update it into
desuetude.
III.
Facebook’s Interpretation Of The TCPA
Would Also Hinder State Enforcement
Efforts.
Facebook’s interpretation of the TCPA would also
lead to negative consequences of its own. Specifically,
Facebook’s interpretation of the TCPA should be
rejected because it would hinder state enforcement
efforts.
States often use the TCPA to sue violators in
federal court, asserting state-law claims using
supplemental jurisdiction. For instance, Virginia
recently settled a suit alleging both TCPA and statelaw claims against a group of violators that
“robocalled hundreds of thousands of consumers
nationwide to pitch online car sale services,
disregarding the National Do Not Call Registry, and
deceiving consumers about the online car sale
services they offer and their ‘money back guarantee.’”
Virginia ex rel. Herring v. Skyline Metrics, LLC, No.
7:19-cv-463, Dkt. 1 (W.D. Va. 2019). Moreover, the
23
TCPA’s federal-law cause of action is especially
critical for States that—unlike, in this example,
Virginia—lack their own restrictions or prohibitions
on autodialers under state law.
In addition, the TCPA allows multiple States to
join forces in a single lawsuit against particularly
abusive robocallers in a court that has undoubted
jurisdiction over the violator, its records, and its
financial accounts and other assets. In just one
recent example, eight States brought suit in a Texas
federal court against robocallers who “initiate
millions of outbound telephone calls that deliver
artificial or prerecorded voice messages . . . to
residential and/or cellular telephone numbers.”
Arkansas v. Rising Eagle Capital Grp. LLC, No. 4:20cv-2021, Dkt. 42 (S.D. Tex. 2020). In another
example, four States, joined by the federal
government, successfully sued a company that
“committed more than 65 million violations of
telemarketing statutes and regulations.” United
States v. Dish Network LLC, 954 F.3d 970, 973 (7th
Cir. 2020).
Facebook’s interpretation of the TCPA would
undermine these types of multi-state and statefederal collaborations. By narrowing the TCPA’s
definition of an autodialer, Facebook would limit the
universe of cases where States can pool their
resources and bring enforcement actions—across
multiple
States
or
alongside
the
federal
24
government—to enforce the TCPA’s protections
against the most abusive robocall practices.
Indeed, without a federal-law violation to
prosecute, States would be left to file separate,
piecemeal lawsuits across a number of different state
courts. To be sure, state enforcement actions of this
kind can still be effective, but a federal claim under
the TCPA is a particularly powerful tool for States
seeking to enforce the law against the most abusive
robocallers.
This
Court
should
reject
Facebook’s
interpretation of the TCPA and preserve the full
ability of States to engage in multi-state and statefederal collaborations that protect consumers from
illegal robocalls.
CONCLUSION
The judgment of the Ninth Circuit should be
affirmed.
25
Respectfully submitted,
CURTIS T. HILL, JR.
Indiana Attorney General
THOMAS M. FISHER
Solicitor General
KIAN J. HUDSON
Deputy Solicitor General
JULIA C. PAYNE
Deputy Attorney General
OFFICE OF THE INDIANA
ATTORNEY GENERAL
302 W. Washington St.
Indianapolis, IN 46204
(317) 232-6255
Tom.Fisher@atg.in.gov
October 23, 2020
JOSHUA H. STEIN
Attorney General
RYAN Y. PARK
Solicitor General
Counsel of Record
NICHOLAS S. BROD
Assistant Solicitor
General
NC DEPARTMENT OF
JUSTICE
Post Office Box 629
Raleigh, NC 27602
(919) 716-6400
rpark@ncdoj.gov
26
ADDITIONAL COUNSEL
CLYDE “ED” SNIFFEN, JR.
Acting Attorney General
State of Alaska
CLARE E. CONNORS
Attorney General
State of Hawaii
MARK BRNOVICH
Attorney General
State of Arizona
LAWRENCE G. WASDEN
Attorney General
State of Idaho
LESLIE RUTLEDGE
Attorney General
State of Arkansas
KWAME RAOUL
Attorney General
State of Illinois
XAVIER BECERRA
Attorney General
State of California
THOMAS J. MILLER
Attorney General
State of Iowa
PHILIP J. WEISER
Attorney General
State of Colorado
DEREK SCHMIDT
Attorney General
State of Kansas
WILLIAM TONG
Attorney General
State of Connecticut
DANIEL CAMERON
Attorney General
Commonwealth
of Kentucky
KATHLEEN JENNINGS
Attorney General
State of Delaware
JEFF LANDRY
Attorney General
State of Louisiana
27
AARON M. FREY
Attorney General
State of Maine
BRIAN E. FROSH
Attorney General
State of Maryland
GORDON J. MACDONALD
Attorney General
State of
New Hampshire
GURBIR S. GREWAL
Attorney General
State of New Jersey
MAURA HEALEY
Attorney General
Commonwealth of
Massachusetts
LETITIA JAMES
Attorney General
State of New York
DANA NESSEL
Attorney General
State of Michigan
WAYNE STENEHJEM
Attorney General
North Dakota
KEITH ELLISON
Attorney General
State of Minnesota
DAVE YOST
Attorney General
State of Ohio
LYNN FITCH
Attorney General
State of Mississippi
MIKE HUNTER
Attorney General
State of Oklahoma
AARON D. FORD
Attorney General
State of Nevada
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
28
JOSH SHAPIRO
Attorney General
Commonwealth
of Pennsylvania
MARK R. HERRING
Attorney General
Commonwealth of
Virginia
PETER F. NERONHA
Attorney General
State of Rhode Island
ROBERT W. FERGUSON
Attorney General
State of Washington
HERBERT H. SLATERY III
Attorney General
State of Tennessee
ERIC J. WILSON
Deputy Attorney
General
State of Wisconsin
THOMAS J. DONOVAN, JR.
Attorney General
State of Vermont
KARL A. RACINE
Attorney General
District of Columbia
Counsel for Amici States
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