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,

NOAH DUGUID, ET AL.,

Respondent.

ON WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

DR. HENNING SCHULZRINNE IN SUPPORT OF

RESPONDENT NOAH DUGUID

KRIS SKAAR

Counsel of Record

SKAAR & FEAGLE, LLP

133 Mirramont Lake Drive

Woodstock, GA 30189

(770) 427-5600

kskaar@skaarandfeagle.com

Counsel for Amicus Curiae

Henning Schulzrinne

Dated: October 23, 2020

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT.....................................................2

ARGUMENT ...............................................................3

II.

The TCPA is Congress’ Answer to

the Robocall Epidemic. ..........................3

The TCPA’s Coverage of

Autodialers Calling Stored

Telephone Numbers is

Essential to Protect

Privacy and Stop Denial of

Service Attacks............................3

Autodialed Calls Result in

Hangups and “Dead Air.” ...........5

Congress was Aware of

Autodialers Targeting

Stored Numbers. .........................6

Congress Intended the

TCPA to be Simple to

Apply............................................7

Ordinary Smartphone Usage is

Not Subject to the TCPA. ......................9

The D.C. Circuit’s Concern

with Smartphones was

Alleviated when it

Discarded the FCC’s

Expansive Interpretation

of Capacity. ..................................9

Ordinary Smartphone

Usage is Not Automatic

Dialing. ......................................10

CONCLUSION ..........................................................13

TABLE OF AUTHORITIES

ACA Int’l v. FCC,

885 F. 3d 687 (D.C. Cir. 2018) ......... 3, 9, 10, 13

Allan v. Penn. Higher Ed. Assistance Agency,

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

Duran v. La Boom Disco, Inc.,

955 F. 3d 279 (2nd Cir. 2020).........................12

Glasser v. Hilton Grand Vacations Co., LLC,

948 F. 3d 1301 (2020) ........................... 9-10, 12

Hashw v. Dept. Stores Nat’l Bank,

986 F. Supp. 2d 1058 (D. Minn. 2013) ......... 7-8

Hunt v. 21st Mortg. Corp.,

2013 WL 12343953 (N.D. Ala.

Oct. 28, 2013) ................................................2, 7

In re ACA Int’l Decl. Ruling,

23 FCC Rcd. 559 (2008) ....................................4

In re Soundbite Decl. Ruling,

27 FCC Rcd. 15391 (2012) ..............................12

In re TCPA Rules & Regulations,

18 FCC Rcd. 14014 (2003) .................. 2, 5, 6, 12

Keyes v. Ocwen Loan Servicing, LLC,

335 F. Supp. 3d 951 (E.D.Mich. 2018) .............8

King v. Time Warner Cable,

894 F. 3d 473 (2018) .......................................10

iii

Mims v. Arrow Fin. Svcs., LLC,

132 S. Ct. 740 (2012) ................................3, 8, 9

Sessions v. Barclays Bank Delaware,

317 F. Supp. 3d 1208 (2018).............................7

STATUTES:

47 U.S.C. § 227 .............................................. 2, 4, 6, 12

OTHER AUTHORITIES:

Hearing before the Subcomm. On

Telecommc’ns and Fin. Of the House

Comm. On Energy and Commerce, 102

Cong. 9, 2 (1991) ...............................................7

S. 1462, The Automated Telephone Consumer

Protection Act of 1991: Hearing before

the Subcomm. On Commc’ns, S. Hrg.

102-960, 16 (July 24, 1991) ..............................7

U.S. Patent No. 3,274,346 (issued Sept. 20, 1966) ....6

U.S. Patent No. 3,445,601 (issued May 20, 1969)......6

U.S. Patent No. 4,829,563 (issued May 9, 1989)........6

INTEREST OF AMICUS CURIAE 1

Professor Henning Schulzrinne is Julian

Clarence Levi Professor of Computer Science at

Columbia University. He received his undergraduate

degree in economics and electrical engineering from

the Darmstadt University of Technology, Germany,

his MSEE degree as a Fulbright scholar from the

University of Cincinnati, Ohio and his Ph.D. from the

University

Massachusetts

Amherst,

Massachusetts. He was a member of technical staff

at AT&T Bell Laboratories, Murray Hill and an

associate department head at GMD-Fokus (Berlin),

before joining the Computer Science and Electrical

Engineering departments at Columbia University,

New York. From 2004 to 2009, he served as chair of

the Department of Computer Science. He co-authored

many of the network protocols that are currently used

by carriers to place phone calls.

From 2010 to 2011, Professor Schulzrinne was

Engineering

Fellow

the

Federal

Communications Commission (FCC), and he served

two stints as Chief Technology Officer of the FCC

(2011-2014; 2016-2017). Through his work, Professor

Schulzrinne has an expertise in telecommunications,

computers and computer systems, and familiarity

with the Communications Act generally, the TCPA

more specifically, and the consumer protection goals

in these acts.

Pursuant to Rule 37.3(a), counsel for all parties

consented in writing to the filing of this brief. No counsel for any

party authored this brief in any part, and no person or entity

other than Amicus or his counsel made a monetary contribution

to fund the preparation or submission of this brief.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“The TCPA, at least before the wordy analysis

of lawyers, courts, and agencies gets to it, simply

prohibits ‘automatic’ dialing” without consent. Hunt

v. 21st Mortg. Corp., 2013 WL 12343953, at *4 (N.D.

Ala. Oct. 28, 2013) (finding “[t]here is no need for

deeply technical interpretations” of “automatic

telephone dialing system”).

The Ninth Circuit’s holding that a system that

stores telephone numbers need not also produce such

numbers squares with the plain reading of “store or

produce.” When the TCPA was enacted, systems

which automatically dialed stored numbers had long

been in use, and Congress enacted the TCPA to

require that users of such systems obtain consent

before calling specified telephone numbers and to give

recipients of such calls without consent the right to

seek an injunction to stop the calls and a modest

remedy of $500 for the violation. 47 U.S.C.

§ 227(b)(1)(A); (b)(3).

The problem with automated dialers is that

they call thousands of numbers at an instant and

often result with nobody on the caller’s end of line,

whether because they use a prerecorded voice or

result in “dead air” or abandoned calls. In re TCPA

Rules & Regulations, 18 FCC Rcd. 14014, 14101

(2003). Consumers who experience the nuisance of

receiving these automated calls have no way of

knowing the technical intricacies and capabilities of

the sophisticated dialing systems used to make the

calls. Overly technical interpretations of the TCPA

that require expensive telecommunications experts to

physically examine the deeply technical capabilities

of dialing systems undermines both the purposes of

the TCPA and its consumer-focused, small claims

enforcement mechanism.

Smartphones do not cause these problems

because smartphones, as ordinarily used, do not

automatically dial telephone numbers. Even if

smartphones had evolved to encroach upon what

Congress outlawed in 1991, the correct response is for

Congress or the FCC to exempt such technology. See

ACA Int’l v. FCC, 885 F. 3d 687, 699 (D.C. Cir. 2018)

(“The agency presumably could, if needed, fashion

exemptions preventing a result under which every

uninvited call or message from a standard

smartphone would violate the statute.”)

ARGUMENT

The TCPA is Congress’ Answer to the Robocall

Epidemic.

The TCPA’s Coverage of Autodialers

Calling Stored Telephone Numbers is

Essential to Protect Privacy and Stop

Denial of Service Attacks.

“Voluminous consumer complaints about

abuses of telephone technology—for example,

computerized calls dispatched to private homes—

prompted Congress to pass the TCPA. Congress

determined that federal legislation was needed

because telemarketers, by operating interstate, were

escaping state-law prohibitions on intrusive nuisance

calls.” Mims v. Arrow Fin. Svcs., LLC, 132 S. Ct. 740,

744 (2012).

Rather than outlaw such autodialers entirely,

Congress required users to obtain consent, absent an

emergency, to call emergency lines, hospital and elder

care guest rooms, cell phones, and other specific types

of telephone lines.

47 U.S.C. § 227(b)(1)(A).2

Additionally, Congress prohibited using an autodialer

in a way that would simultaneously engage multiple

lines of a multi-line business. 47 U.S.C. § 227(b)(1)(D).

Finally, Congress granted the FCC the authority to

implement technical and procedural standards to

regulate problematic uses of autodialers. 47 U.S.C.

§ 227(d)(1)(A).

According to the Department of Homeland

Security, autodialers specifically targeting emergency

lines, including 911, in telephony denial of service

attacks remain a real problem. Homeland Security,

Partnering to Prevent TDoS Attacks, (accessed

October 22, 2020), available at https://www.dhs.gov/

science-and-technology/blog/2018/07/09/partneringprevent-tdos-attacks. “These attacks pose significant

risks to banks, schools, hospitals, and even

government agencies. When banks are attacked,

customers are denied access to their accounts[.]” Id.

Fortunately,

the

TCPA

gave

States,

consumers, and businesses a real tool to stop these

calls. Consumers and businesses can file an action for

damages, seek an injunction enforceable by contempt,

or both. 47 U.S.C. § 227(b)(3). States can do the same.

47 U.S.C. § 227(g). These tools are the best deterrent

to such calls and the most efficient method to stop

them.

Such consent is easily obtained by the consumer’s

voluntary provision of a telephone number, and the FCC has

encouraged caller’s to include consent in terms and conditions.

In re ACA Int’l Decl. Ruling, 23 FCC Rcd. 559, 564-65, n.37

(2008).

Autodialed Calls Result in Hangups and

“Dead Air.”

Autodialers often result in no connection to a

human representative and no message. Predictive

dialers which automatically dial stored telephone

numbers using timing algorithms to predict when the

caller’s agent may be available to take a call are of

particular concern. According to the FCC:

[P]redictive dialers are responsible for

the vast majority of abandoned

telemarketing calls--both hang-ups and

“dead air” calls. Individual consumers

report receiving between three and ten

hang-up calls each day. Consumers often

feel harassed or aggravated by “dead air”

calls. Many describe the burdens these

calls impose on individuals with

disabilities, who often struggle to

answer the telephone. Hang-ups and

“dead air” calls also can be frightening

for the elderly. Consumers complain

that they do not have an opportunity to

request placement on a company’s donot-call list when predictive dialers

disconnect calls. Abandoned calls can

also interfere with Internet usage or

simply tie-up telephone lines for people

telecommuting or operating businesses

out of the home.

In re TCPA Rules & Regulations, 18 FCC Rcd. 14014,

14101 (2003).

Predictive dialers allow the caller to set an

abandonment rate. Higher abandonment rates are

more efficient for the caller, but they result in more

“dead air” and hangup calls. Id. at 14022, n.32.

Although the FCC has implemented rules to limit

abandoned calls caused by predictive dialers, the

FCC’s authority is itself limited to “automatic

telephone dialing systems.” See 47 U.S.C.

§ 227(d)(1)(A)(prohibiting using an ATDS in a

manner which does not comply with the technical and

procedural standards prescribed by the FCC).

Congress was Aware of Autodialers

Targeting Stored Numbers.

Autodialers calling stored telephone numbers

were in existence and in use in 1991 when the TCPA

was enacted. For example, U.S. Patent No. 4,829,563

(issued May 9, 1989) describes a predictive dialer

similar to the one the FCC discussed in 2003. In re

TCPA Rules & Regulations, 18 FCC Rcd. 14014,

14091-93 (2003). In fact, autodialing systems which

automatically dialed stored telephone numbers

existed as early as the 1960’s. See, e.g., U.S. Patent

No. 3,274,346 (issued Sept. 20, 1966) (“This invention

relates generally to an automatic telephone dialing

apparatus, and more particularly to a system and

apparatus for use in conjunction with conventional

dial telephones for automatically successively dialing

and delivering a prerecorded message to each of a

plurality of predesignated telephone numbers.”); U.S.

Patent No. 3,445,601 (issued May 20, 1969) (“[I]t is a

primary object of the present invention to provide an

automatic telephone dialing and message delivery

system which is capable of (1) automatically dialing a

prerecorded series of numbers…”).

By the time the TCPA was enacted,

telemarketers routinely used autodialers to call “lists

which are [] bought or sold without restriction.” See

Bills to Amend the Communications Act of 1934:

Hearing before the Subcomm. On Telecommc’ns and

Fin. Of the House Comm. On Energy and Commerce,

102 Cong. 9, 2 (1991) (statement of Rep. Markey).

According to testimony, “30 to 40 percent of the

national telemarketing firms are using them this

year.” S. 1462, The Automated Telephone Consumer

Protection Act of 1991: Hearing before the Subcomm.

On Commc’ns, S. Hrg. 102-960, 16 (July 24, 1991)

(Stmt. Of Robert S. Bulmash). Put simply, autodialers

which automatically dialed stored telephone numbers

were well understood by 1991 and were of particular

concern to Congress when enacting the TCPA.

Congress Intended the TCPA to be

Simple to Apply.

“The TCPA, at least before the wordy analysis

of lawyers, courts, and agencies gets to it, simply

prohibits ‘automatic’ dialing… If equipment

automatically dials numbers, it cannot be used to call

cell phones.” Hunt v. 21st Mortg. Corp., 2013 WL

12343953, at *4 (N.D. Ala. Oct. 28, 2013) (finding

“[t]here is no need for deeply technical

interpretations” of “automatic telephone dialing

system”). Consumers who receive autodialed calls

recognize the call is autodialed by hearing “dead air”

or noticing that the call was abandoned, but they are

generally not experts in dialing technology and lack

knowledge of the intricacies and technical capabilities

of the dialing systems used by the calling party. See,

e.g., Sessions v. Barclays Bank Delaware, 317 F.

Supp. 3d 1208, 1213, n.4 (2018) (“[W]ithout discovery,

it would be nearly impossible for a plaintiff to gather

sufficient information to allege with specificity the

type of dialer used by a defendant.”) quoting Hashw

v. Dept. Stores Nat’l Bank, 986 F. Supp. 2d 1058,

1061, n.2 (D. Minn. 2013). It was never intended that

the recipients of such calls would need to engage

expensive experts on autodialing technologies in

order to recover $500 for an autodialed call made

without consent. See Keyes v. Ocwen Loan Servicing,

LLC, 335 F. Supp. 3d 951, 957 (E.D.Mich. 2018)

(excluding testimony regarding the Aspect predictive

dialer because the witness did not personally inspect

the system).

When holding that federal courts have

concurrent jurisdiction over TCPA claims, this Court

recognized that Senator Hollings, the TCPA’s

sponsor, “no doubt believed that mine-run TCPA

claims would be pursued most expeditiously in state

small-claims court.” Mims v. Arrow Fin. Svcs., LLC,

132 S. Ct. 740, 752 (2012). This observation was based

upon Senator Hollings’ statement that:

Small claims court or a similar court

would allow the consumer to appear

before the court without an attorney.

The amount of damages in this

legislation is set to be fair to both the

consumer

and

the

telemarketer.

However, it would defeat the purposes of

the bill if the attorneys’ costs to

consumers of bringing an action were

greater than the potential damages. I

thus expect that the States will act

reasonably in permitting their citizens

to go to court to enforce this bill.

137 Cong. Rec. 30821-30740, 822 (1991).

While various Amici in support of Facebook

discuss various class actions in Federal Court, which

this Court acknowledged in Mims, this Court

correctly countered that ordinary, small claims cases

for $500 are unlikely to ever be filed and litigated in

Federal Court. Mims, 132 S. Ct. at 753. Overly

technical interpretations of the TCPA that require

expensive telecommunications experts to physically

examine the technical capabilities of dialing systems

undermines both the purposes of the TCPA and its

consumer-focused,

small

claims

enforcement

mechanism. It defies belief that Congress would have

intended the narrow interpretation espoused by

Facebook while also intending that recipients of such

calls be able to proceed in small claims court without

counsel.

II.

Ordinary Smartphone Usage is Not Subject to

the TCPA.

The D.C. Circuit’s Concern with

Smartphones was Alleviated when it

Discarded

the

FCC’s

Expansive

Interpretation of Capacity.

In 2018, the D.C. Circuit set aside the FCC’s

expansive interpretation of the word “capacity” to

include both current and future configurations. See

ACA Int’l v. FCC, 885 F. 3d 687, 695-700 (2018). The

D.C. Circuit held that interpreting the word

“capacity” to include potential modifications was too

broad and would sweep ordinary smartphones under

the TCPA. Id. Seizing on this, Facebook, its

supporting Amici, and the United States express

concern that smartphones could be swept into the

definition of an automatic telephone dialing system if

the Ninth Circuit was affirmed. Of course, there is no

evidence that people have been sued for standard use

of consumer smartphones. The reason is simple —

they don’t autodial. As the dissent in Glasser v.

Hilton Grand Vacations Co., LLC recognized, these

concerns are merely hypothetical. 948 F. 3d 1301,

1317 (2020).

Of course, smartphones, like any computer,

could download autodialing software, no matter

which functions were necessary to make a system an

automatic telephone dialing system. A simple search

for random number generator in a smartphone app

store will produce numerous results. Importantly,

however, the Circuits have been unified since the D.C.

Circuit’s decision in ACA Int’l that “capacity” is

limited to its present configuration. Both the Second

and the Sixth Circuit, which follow the approach of

the Ninth Circuit below, have held as much. See King

v. Time Warner Cable, 894 F. 3d 473, 481

(2018)(“[W]e conclude that the term ‘capacity’ in the

TCPA’s definition of a qualifying autodialer should be

interpreted to refer to a device’s current functions,

absent any modifications to the device’s hardware or

software.”); Allan v. Penn. Higher Ed. Assistance

Agency, 968 F. 3d 567, 578 (6th Cir. 2020)(“That

means that use of a cell phone would be subject to a

fine under the TCPA only if it actually is used as an

ATDS.”). Because ordinary smartphone usage is not

autodialing, it is not subject to the TCPA.

Ordinary Smartphone Usage is Not

Automatic Dialing.

Ordinary smartphone usage is not autodialing,

so the hypothetical parade of horribles put forth by

Facebook and its supporting Amici cannot

materialize. Factory default smartphone applications

require a human to cognitively select numbers to call,

whether by touch or voice command. They do not

automatically dial stored contacts. As the Second

Circuit noted:

Clicking on a name in a digital

phonebook to initiate a call or text is a

form of speed-dialing or constructive

dialing that is the functional equivalent

of dialing by inputting numbers. When

we save a contact in a smartphone, we

are merely instructing the phone to

replace the 10-digit phone number with

a single button (i.e. one can click on the

name “John” to accomplish the same

task as inputting all 10 digits of John’s

number). The contact card in a

smartphone is a proxy or a shortcut for a

number (just like the single digit “0” was

traditionally a proxy for dialing the

operator). When one clicks on the card,

one is constructively dialing the

attached number. Therefore, when one

sends a text message using a

smartphone—which involves clicking on

the card and then clicking a “send”

button—one has already accomplished

the dialing.

However, when one clicks on the

“send” button in the programs at issue

here, one is not dialing a particular

attached

number

beforehand

afterwards. Simply put, the “send”

button, unlike a contact card, is not a

short-cut for dialing a particular person.

Rather, clicking “send” is accomplishing

a different task altogether: it is telling

the ATDS to go ahead and dial a

separate list of contacts, often

numbering in the hundreds or

thousands.

Duran v. La Boom Disco, Inc., 955 F. 3d 279, 289, n.39

(2nd Cir. 2020).

Even the automatic “I’m driving” text feature

only texts a single response to an individual call, and

it only does so as a result of the initial caller

triggering the system to return a call. That’s neither

automatic nor unsolicited. Cf. In re Soundbite Decl.

Ruling, 27 FCC Rcd. 15391, 15397-98 (2012) (finding

that a single confirmatory message in response to an

opt-out request is subject to prior consent). The word

“automatic” implies both “without direct human

intervention” and “high volume.” See, e.g., In re TCPA

Rules & Regulations, 18 FCC Rcd. 14014, 14092

(2003) (recognizing that “autodialers can dial

thousands of numbers in a short period of time” and

that the “basic function of such equipment [is] the

capacity to dial numbers without human

intervention.”). It is the party who initiates the initial

incoming call that triggers this call, and it only makes

one call at a time. See Glasser, 948 F. 3d at 1317

(Martin,

J.,

dissenting)

(“Neither

situation

hypothesized by the majority involves the

simultaneous dialing of numbers, plural.”) citing

§ 227(a)(1)(B) (“dial such numbers” [plural]). Such a

feature does not automatically call stored telephone

numbers; it merely returns a text message to the

incoming caller’s number identification relayed by the

caller through the carrier.

Even if smartphones had evolved to encroach

upon what Congress outlawed in 1991, which they

have not, the correct response would be for Congress

or the FCC to address it. See ACA Int’l v. FCC, 885 F.

3d 687, 699 (D.C. Cir. 2018)(recognizing that the FCC

has authority to exempt smartphone usage). The

ubiquity of a device first released 16 years after the

TCPA was enacted should not be used to interpret

what Congress meant in 1991.

CONCLUSION

For the foregoing reasons, the judgment of the

Ninth Circuit should be affirmed.

Respectfully submitted,