Reply 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.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

A.

B.

C.

D.

Section 227(a)(1)(A) is most naturally read as

limited to devices with the capacity to use a

random or sequential number generator ...................... 2

The TCPA’s predecessor state laws support the

most natural reading of Section 227(a)(1)(A) ................ 9

The government’s reading of Section 227(a)(1)(A)

is consistent with the TCPA’s purpose ........................ 12

Policy concerns provide no sound reason to reject

the most natural interpretation of Section

227(a)(1)(A) ..................................................................... 18

TABLE OF AUTHORITIES

Cases:

Advocate Health Care Network v. Stapleton,

137 S. Ct. 1652 (2017) ................................................. 8, 9, 12

Babb v. Wilkie, 140 S. Ct. 1168 (2020) ................................... 3

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992)................................................................ 3

Cyan, Inc. v. Beaver County Emps. Ret. Fund,

138 S. Ct. 1061 (2018) ........................................................... 5

Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134 (2018) ........................................................... 4

Gadelhak v. AT&T Servs., Inc., 950 F.3d 458

(7th Cir. 2020), petition for cert. pending,

No. 20-209 (filed Aug. 17, 2020) ........................................... 2

Jama v. Immigration & Customs Enforcement,

543 U.S. 335 (2005)................................................................ 5

Lockhart v. United States, 136 S. Ct. 958 (2016) .................. 5

Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) .............. 9, 12

Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012) ...... 10

Paroline v. United States, 572 U.S. 434 (2014) .................... 5

(I)

II

Cases—Continued:

Page

Thryv, Inc. v. Click-to-Call Techs., LP,

140 S. Ct. 1367 (2020) ......................................................... 12

United States v. Bass, 404 U.S. 336 (1971) ........................... 5

United States v. Hayes, 555 U.S. 415 (2009) ........................ 5

United States Nat’l Bank v. Independent Ins.

Agents of Am., Inc., 508 U.S. 439 (1993) ............................ 3

Statutes and regulations:

Fair Debt Collection Practices Act, 15 U.S.C. 1692

et seq. .................................................................................... 20

15 U.S.C. 1692c(c) ............................................................ 20

15 U.S.C. 1692k(a)(2)(A) ................................................. 20

Pallone-Thune TRACED Act, Pub. L. No. 116-105,

§ 10(b), 133 Stat. 3284 (47 U.S.C. 227( j)) .......................... 21

Telephone Consumer Protection Act of 1991,

Pub. L. No. 102-243, 105 Stat. 2394 .................................... 1

§ 2(6), 105 Stat. 2394 ................................................. 12, 14

§ 2(7), 105 Stat. 2394 ....................................................... 10

§ 2(12), 105 Stat. 2394-2395 ............................................ 14

47 U.S.C. 227(a)(1)............................................. 2, 3, 11, 21

47 U.S.C. 227(a)(1)(A) ............................................ passim

47 U.S.C. 227(a)(1)(B) ............................................... 21, 22

47 U.S.C. 227(a)(2)........................................................... 11

47 U.S.C. 227(b)(1)(A) ................................... 11, 13, 15, 22

47 U.S.C. 227(b)(1)(A)-(B) .............................................. 11

47 U.S.C. 227(b)(1)(B) ............................................... 13, 15

47 U.S.C. 227(b)(1)(D) ..................................................... 13

47 U.S.C. 227(c)(1)-(2) ..................................................... 13

47 U.S.C. 227(c)(5) ........................................................... 20

Cal. Pub. Util. Code § 2871 (West 1980).............................. 11

Ind. Code § 24-5-14-1 (1988) ........................................... 10, 11

III

Statutes and regulations—Continued:

Page

N.Y. Gen. Bus. Law § 399-p (McKinney 1988) ................... 11

Okla. Stat. tit. 15, § 752.10 (1991) ......................................... 11

16 C.F.R.:

Pt. 310 ............................................................................... 20

Section 310.4(b)(1)(iii)(B) .......................................... 20

Section 310.7............................................................... 20

47 C.F.R. 64.1200(c)(2) .......................................................... 20

Miscellaneous:

Advance Methods to Target & Eliminate Unlawful

Robocalls, In re:

32 FCC Rcd 9706 (2017) ................................................. 21

34 FCC Rcd 4876 (2019) ................................................. 21

35 FCC Rcd 7614 (2020) ................................................. 20

Black’s Law Dictionary (10th ed. 2014) ................................. 6

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

FCC:

Call Blocking Tools Now Substantially Available

to Consumers: Report on Call Blocking,

CG Docket No. 17-59 (June 2020),

https://go.usa.gov/x7EKG ......................................... 21

Report on Robocalls, CG Docket No. 17-59

(Feb. 2019), https://go.usa.gov/x7NAU ................... 20

60 Fed. Reg. 43,842 (Aug. 23, 1995) ..................................... 20

Federal Trade Comm’n, Robocalls,

https://go.usa.gov/x7N7v (last visited Nov. 16, 2020)...... 19

Bryan A. Garner, Garner’s Modern English Usage

(4th ed. 2016) ..................................................................... 2, 3

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

(1991) .............................................................12, 13, 14, 15, 16

IV

Miscellaneous—Continued:

Page

Implementation of Section 6002(B) of the Omnibus

Budget Reconciliation Act of 1993, In re, 10 FCC

Rcd 8844 (1995) ................................................................... 14

S. 1462, The Automated Telephone Consumer Protection Act of 1991; S. 1410, The Telephone Advertising Consumer Protection Act; and S. 857, Equal

Billing For Long Distance Charges: Hearing Before the Senate Subcomm. on Communications of

the Comm. On Commerce, Science, and Transportation, 102d Cong., 1st Sess. (1991) ...................... 15, 16, 17

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

(1991) .............................................................11, 14, 15, 16, 18

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ........... 2, 3, 4, 5, 6

2A Norman J. Singer & Shambie Singer, Sutherland

Statutes and Statutory Construction

(7th ed. 2014) ................................................................. 2, 4, 5

Telemarketing Practices: Hearing Before the Subcomm. on Telecommunications and Finance of the

House Comm. on Energy and Commerce on H.R.

628, H.R. 2131, and H.R. 2184, 101st Cong., 1st

Sess. (1989) .......................................................................... 17

Telemarketing/Privacy Issues: Hearing Before the

Subcomm. Telecommunications and Finances of

the House Comm. on Energy and Commerce, 102d

Cong., 1st Sess. (1991) .................................................. 16, 17

U.S. Patent No. 4,741,028 (issued Apr. 26, 1988) ................. 7

Webster’s New International Dictionary

(2d ed. 1942)........................................................................... 7

Webster’s Third International Dictionary (1961) ............... 7

In the Supreme Court of the United States

No. 19-511

FACEBOOK, INC., PETITIONER

v.

NOAH DUGUID, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

The statutory provision at issue in this case defines

an “automatic telephone dialing system” as equipment

with the capacity “to store or produce telephone numbers to be called, using a random or sequential number

generator.” 47 U.S.C. 227(a)(1)(A). That definition is

best read as limited to devices that have the capacity to

use a random or sequential number generator either to

store or to produce telephone numbers for dialing. That

interpretation is more consistent with basic rules of

grammar, and with the history and purpose of the Telephone Consumer Protection Act of 1991 (TCPA), Pub.

L. No. 102-243, 105 Stat. 2394, than the broader reading

adopted by the court below and endorsed by Duguid.

In advocating a substantially broader construction of

Section 227(a)(1)(A), Duguid disregards usual rules of

syntax and grammar, dismisses reasonable understandings of Congress’s objectives, and misconceives the provision’s limited role in the larger statutory scheme. If

adopted, his construction of Section 227(a)(1)(A) would

(1)

2

cast doubt on the legality of ubiquitous private uses of

ordinary smartphones. For those reasons and others,

this Court should reject Duguid’s construction of Section

227(a)(1)(A) and reverse the court of appeals’ decision.

A. Section 227(a)(1)(A) Is Most Naturally Read As Limited

To Devices With The Capacity To Use A Random Or

Sequential Number Generator

For three reasons, Section 227(a)(1)(A)’s text is best

understood as encompassing only devices that are capable of “using a random or sequential number generator”

either to “store” or to “produce” telephone numbers.

First, where, as here, “there is a straightforward, parallel construction that involves all nouns or verbs in a

series, a * * * postpositive modifier normally applies to

the entire series.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 147

(2012). Second, a comma used to offset such a postpositive modifier provides further “evidence that the qualifier is supposed to apply to all the antecedents.” 2A

Norman J. Singer & Shambie Singer, Sutherland Statutes and Statutory Construction § 47:33, at 499-500 (7th

ed. 2014). Third, where a direct object (here, “telephone

numbers to be called”) that is shared by both verbs is

interposed between the verbs and the modifying phrase,

construing the modifying phrase to apply to one verb

but not the other would require “a significant judicial rewrite,” Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 466

(7th Cir. 2020), petition for cert. pending, No. 20-209

(filed Aug. 17, 2020). See U.S. Br. 15-17.

1. Duguid principally contends that the meaning of

Section 227(a)(1) should be determined “not by the rules

of syntax but by the sense of the passage.” Br. 11 (quoting Bryan A. Garner, Garner’s Modern English Usage

1031 (4th ed. 2016)); see Br. 11-15. Invoking a concept

3

known as “ ‘synesis,’ ” he argues that statutory interpretation “turns not on grammar alone, but on an understanding of how ‘the meaning of each word inform[s] the

others.’ ” Duguid Br. 11 & n.3 (citations omitted; brackets in original). Duguid suggests (Br. 11-15) that the

“sense” of Section 227(a)(1) is that “using a random or

sequential number generator” modifies “produce,” but

not “store.”

Whatever the soundness of “synesis” as an interpretive tool, it appears to have little to do with this case.

Duguid’s own authority explains that synesis principally

refers to the idea that, “[i]n some contexts, meaning—as

opposed to the strict requirements of grammar or

syntax—governs SUBJECT-VERB AGREEMENT.” Garner

886 (defining “synesis”); see id. at 1031. The “classic

example” of this “antigrammatical” concept is “the

phrase a number of,” which is regularly followed by a

plural verb”—e.g., “a number of people were there”—

“even though technically the singular noun number is

the subject.” Id. at 886.

This case, however, does not turn on any question of

subject-verb agreement or the sense of anything. It

turns on the precise meaning of a particular statutory

phrase.

Absent absurdity or “scrivener’s error,”

United States Nat’l Bank v. Independent Ins. Agents of

Am., Inc., 508 U.S. 439, 462 (1993), a court in construing

a statute “must presume that a legislature says in a

statute what it means and means in a statute what it

says.” Connecticut Nat’l Bank v. Germain, 503 U.S.

249, 253-254 (1992). And because legislators “are presumed to be grammatical in their compositions,” Scalia

& Garner 140, “matters of syntax are critical” in determining what a statute says, Babb v. Wilkie, 140 S. Ct.

1168, 1173 (2020).

4

2. Duguid contends that, under the “correct grammatical reading” of Section 227(a)(1)(A), and the “most

analogous canons of construction,” the phrase “using a

random or sequential number generator” modifies only

“produce” and not “store.” Br. 16, 19 (emphasis omitted). Duguid’s arguments are unpersuasive.

Duguid invokes (Br. 20) the “distributive-phrasing

canon.” Also known as reddendo singula singulis (“referring each to each”), that canon applies “[w]here a

sentence contains several antecedents and several consequents,” such that the sentence is most naturally understood to pair each consequent with the matching antecedent. Singer & Singer § 47:26, at 448. Thus, the

sentence “Men and women are eligible to become members of fraternities and sororities” is most naturally

read to mean that men are eligible to join fraternities

and women are eligible to join sororities, rather than “to

suggest an unconventional commingling of sexes in the

club membership,” whereby persons of either sex could

join either type of organization. Scalia & Garner 214.

“Fortunately, this sort of syntactic construction

* * * has largely fallen into disuse.” Scalia & Garner

215-216; see Singer & Singer § 47:26, at 451 (noting that

“[c]areful statutory drafting could almost entirely eliminate the interpretative difficulties which require the

rule of reddendo singula singulis”). And as Duguid recognizes, the rule does not apply here because Section

227(a)(1)(A) lacks the “one-to-one matching” that gives

the canon its Latin name. Br. 20 (citation omitted). Although Duguid attempts to minimize that problem, the

Court relied on precisely that distinction in declining to

apply the canon in Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134, 1141 (2018). It should do the same here.

5

Duguid’s invocation (Br. 20-21) of the last-antecedent

rule is similarly unavailing. That rule provides that “a

limiting clause or phrase should ordinarily be read as

modifying only the noun or phrase that it immediately

follows.” Lockhart v. United States, 136 S. Ct. 958, 962

(2016) (citation and emphasis omitted). Even where

that rule applies, it “can assuredly be overcome by other

indicia of meaning.” Id. at 963 (citation omitted); see,

e.g., Cyan, Inc. v. Beaver County Emps. Ret. Fund, 138

S. Ct. 1061, 1076-1077 (2018); Paroline v. United States,

572 U.S. 434, 446-447 (2014); United States v. Hayes,

555 U.S. 415, 425-426 (2009). For at least three reasons,

the last-antecedent rule does not support Duguid’s

reading of Section 227(a)(1)(A).

First, the last-antecedent rule does not apply to a

modifier that appears “at the end of a single, integrated

list.” Jama v. Immigration & Customs Enforcement,

543 U.S. 335, 344 n.4 (2005). A statute that bars a felon

from “receiv[ing], possess[ing], or transport[ing] in

commerce or affecting commerce * * * any firearm”

does not prohibit purely intrastate receipt or possession. United States v. Bass, 404 U.S. 336, 337, 339

(1971) (citations omitted); see id. at 337-340. And a reference to “[a] corporation or partnership registered in

Delaware” does not encompass a corporation registered

in Maine. Scalia & Garner 148 (emphasis omitted).

Second, the rule does not apply when the modifier is

set off by a comma. Inclusion of a comma at the end of

a series before a modifier can “avoid [any] ambiguity”

about whether the modifier is meant to apply to each

term in the series or only to the one that immediately

precedes it. Bass, 404 U.S. at 340 n.6; see Singer &

Singer § 47:33, at 499-500. Although Duguid appears to

accept that general understanding, he argues that the

6

comma merely “tells the reader to look farther back,”

but not “how far.” Br. 22. That is incorrect. Use of a

comma in these circumstances makes clear that the

“modifying phrase * * * applies to all that preceded it,”

not “only to a part.” Scalia & Garner 161 (emphasis

added).

Finally, the last-antecedent rule cannot demonstrate

that the adverbial phrase “using a random or sequential

number generator” modifies “produce” but not “store,”

because “produce” is not the immediately preceding

verb—“called” is. See 47 U.S.C. 227(a)(1)(A) (“to store

or produce telephone numbers to be called, using a random or sequential number generator”); see also Black’s

Law Dictionary 1533 (10th ed. 2014). No one contends

that a device that stores or produces telephone numbers

must be capable of using a random or sequential number generator to call those numbers in order to qualify

as an automatic telephone dialing system under the

TCPA. Cf. Duguid Br. 22.

3. a. All of Duguid’s other textual arguments ultimately rely on the assertion that “[s]tore denotes retention; produce denotes creation.” Br. 8. From this premise, Duguid repeatedly declares that “using a * * *

number generator” can sensibly describe only “a way of

producing numbers to be called, not of storing them.”

Br. 12; see Br. 12-13, 19 (urging the court to ignore rules

of syntax for that reason); Br. 20 (applying a modified

distributive-phrasing canon on that basis); Br. 21 (applying a modified last-antecedent rule on that basis);

ibid. (rejecting the series-qualifier canon on that basis);

Br. 22 (ignoring the comma separating the modifier on

that basis). That reasoning is misguided.

The 1991 Congress that enacted the TCPA very sensibly could have chosen to regulate the use of random

7

or sequential number generators to store telephone

numbers. Patents issued before 1991 describe technologies with the capacity to generate random or sequential numbers either for immediate dialing, or for immediate storage and subsequent dialing. See U.S. Br. 1920; PACE Amicus Br. 15-21. The latter approach can

readily be described as using a random or sequential

number generator to store telephone numbers to be

called (at a later time).

Duguid suggests (Br. 27 n.11) that such devices do

not use a random or sequential number generator to

store numbers, but rather “use[ ] a file in a computer’s

memory.” That is simply word play. Just as one can

use a banking application to deposit money into a banking account, a telemarketer can use a number generator

to store a telephone number in a file or other computer

memory. See U.S. Patent No. 4,741,028, fig. 1, col. 4

(issued Apr. 26, 1988) (illustrating a “system for randomly generating telephone numbers” that “store[s]”

the generated numbers for later dialing) (capitalization

omitted).

In arguing that a number “generator” is inherently

used to “produce” rather than to “store” numbers,

Duguid observes (Br. 12 & nn.4-5) that the verb “produce” can describe the act of creating or generating

something. But the purpose of using a random or sequential number generator in telemarketing or similar

activities is not to create telephone numbers. The numbers are useful for this purpose only if they have already

been assigned to actual telephones. Thus, for purposes

of Section 227(a)(1)(A), the word “produce” should

likely be read to mean “[t]o bring forward * * * as, to

produce a witness in court.” Webster’s New International Dictionary 1974 (2d ed. 1942); see Webster’s

8

Third International Dictionary 1810 (1961) (same). If

the word “produce” is understood in that way, it has no

greater inherent connection to a random or sequential

number generator than does the word “store.”

b. Duguid invokes (Br. 17-18) other “hypothetical

definitions” with a grammatical structure similar to that

of Section 227(a)(1)(A). But even if Duguid had accurately captured the most “natural reading” of each of

those hypothetical definitions, that would be so only because “the mind rebels against reading the [definitions]

literally, in line with the logical and canonical principles

described” in our opening brief. Advocate Health Care

Network v. Stapleton, 137 S. Ct. 1652, 1660 (2017). Verbal formulations may exist in which faithful application

of ordinary canons of construction produces readings so

substantively unnatural that they can appropriately be

rejected. A court should reach that conclusion, however, only upon a showing of “contextual implausibility,” i.e., only when the “usual rules of interpreting text

* * * will lead to a ‘must be wrong’ outcome.” Id. at

1661. The government’s interpretation of Section

227(a)(1)(A) produces no such anomaly.

The same insights explain why the most natural

reading of Section 227(a)(1)(A) does not render any

term within that provision superfluous. Cf. Duguid Br.

22-27. Congress’s inclusion of devices that use number

generators either to “store” or “produce” numbers to be

called may reflect the fact that, in 1991, some devices

used random or sequential number generators to produce numbers for immediate dialing, while others

stored numbers to be dialed at a later time. See pp. 67, supra. Duguid’s contention (Br. 24) that the latter

category of devices “would still fall outside the statute”

is based on his misguided assertion that such devices

9

“use” only a file (rather than the random or sequential

number generator itself ) to store the generated numbers. See p. 7, supra. And if “produce” is understood

to mean “bring forward,” rather than “create,” pp. 7-8,

supra, the lack of redundancy becomes clearer still. On

that understanding, a random or sequential number

generator can be used to store numbers but not to produce them if (for example) the number generator is used

to compile a list from which a human operator later selects particular numbers to be dialed.

B. The TCPA’s Predecessor State Laws Support The Most

Natural Reading Of Section 227(a)(1)(A)

1. The contrast between Section 227(a)(1)(A) and

the predecessor state laws on which the TCPA was

based reinforces the government’s reading. See U.S.

Br. 25-29. Those laws make clear that, if Congress had

intended to define “automatic telephone dialing system”

to encompass devices that do not use a random or sequential number generator, it had several model definitions to choose from. Congress’s decision not to adopt

such “ ‘obvious alternative[s]’ ” “indicates that Congress

did not in fact want what [Duguid] claim[s].” Advocate

Health Care Network, 137 S. Ct. at 1659 (quoting

Lozano v. Montoya Alvarez, 572 U.S. 1, 16 (2014)).

When the TCPA was enacted, at least 25 state telemarketing laws covered some categories of automated

calls that did not involve the use of a random or sequential number generator. See U.S. Br. 26 n.6. Some

States achieved that result by including random or sequential number generators within a larger catalogue of

technological attributes whose presence would trigger

the statute. See, e.g., Okla. Stat. tit. 15, § 752.10 (1991)

(regulating “automatic equipment that: a. stores tele-

10

phone numbers to be called, or has a random or sequential number generator capable of producing numbers to

be called, and b. conveys a prerecorded or synthesized

voice message to the number called without the use of

a live operator”). Other States adopted definitions under which the manner of selection of called numbers

was simply irrelevant. See, e.g., Ind. Code § 24-5-14-1

(1988) (including any “device that: (1) selects and dials

telephone numbers; and (2) working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone

number called”). Congress eschewed both approaches,

instead adopting a definition that is most naturally read

to require the use of random or sequential number generators for either storage or production of telephone

numbers.

2. Duguid appears to be of two minds about the relevance of these state laws. On the one hand, he suggests

(Br. 14) that the state definitions provide the “general

meaning of an automatic dialing system” on which the

Court should place significant weight. That assertion

implies that the Court should demand a particularly

clear indication that Congress did not seek to replicate

those laws when it enacted Section 227(a)(1)(A)’s definition of “automatic telephone dialing system.” Duguid

also argues (Br. 15), however, that any differences in

terminology between those state definitions and Section

227(a)(1)(A) “suggest[ ] no difference in meaning” because the predecessor laws are only “state statutes.”

Ibid. Both contentions are wrong.

Although Congress enacted the TCPA in an effort to

supplement preexisting state laws, see TCPA § 2(7), 105

Stat. 2394; Mims v. Arrow Fin. Servs., LLC, 565 U.S.

368, 371 (2012), it did not simply replicate the States’

11

approach on the federal level. As our opening brief explains (Br. 25-26), most state-law restrictions applied

only to automatic dialing systems that were capable of

delivering a message using an artificial or prerecorded

voice. Duguid acknowledges (Br. 14), and Congress well

knew, that those state laws regulated “automatic dialing and announcing devices (ADADs),” S. Rep. No.

178, 102d Cong., 1st Sess. 2 (1991) (Senate Report) (emphasis added)—often by name. See, e.g., Cal. Pub. Util.

Code § 2871 (West 1980) (defining “automatic dialingannouncing device”); Ind. Code § 24-5-14-1 (1988)

(same); N.Y. Gen. Bus. Law § 399-p (McKinney 1988)

(same); Okla. Stat. tit. 15, § 752.10 (1991) (same).

In the TCPA, Congress took a different approach.

The Act separately prohibits (1) calls to certain sensitive telephone lines placed using an “automatic telephone dialing system,” defined without regard to

whether the device is capable of delivering a prerecorded message, 47 U.S.C. 227(b)(1)(A); see 47 U.S.C.

227(a)(1); and (2) calls to deliver messages with an artificial or prerecorded voice, made either to the same sensitive telephone lines or to any residential telephone

line, without regard to the technology used to make the

call, 47 U.S.C. 227(b)(1)(A)-(B). In light of that obvious

departure from the antecedent state-law regimes,

Duguid is wrong to infer (Br. 15) that Congress used

different words in Section 227(a)(1)(A) to “describe the

same devices.”

The fact that the predecessor language appeared

in state rather than federal laws does not detract

from those laws’ significance in construing Section

227(a)(1)(A). Contrary to Duguid’s suggestion (Br. 15),

this Court has not confined its comparisons of statutory

alternatives to “different words in different parts” of a

12

federal statute. The Court has considered Congress’s

failure to adopt even a hypothetical “ready alternative”

to be instructive as to the meaning of the words Congress actually enacted. Advocate Health Care Network,

137 S. Ct. at 1659; see Lozano, 572 U.S. at 16. Particularly in light of Congress’s stated intent to supplement

existing state-law restrictions on telemarketing, those

state-law precursors provided “readymade language,”

Thryv, Inc. v. Click-to-Call Techs., LP, 140 S. Ct. 1367,

1375 (2020), that Congress could have incorporated into

the TCPA if it had wished to adopt Duguid’s preferred

definition. Congress enacted significantly different language, and this Court should not “revisit that choice.”

Lozano, 572 U.S. at 16.

C. The Government’s Reading Of Section 227(a)(1)(A) Is

Consistent With The TCPA’s Purpose

Duguid contends (Br. 29) that the government’s

reading of Section 227(a)(1)(A) is “dramatically at odds

with the broad objectives evident from [the TCPA’s]

text and structure.” See Br. 27-44. That argument misconceives the role of the automated-call restriction in

the statutory scheme and the relatively narrow function

that Section 227(a)(1)(A) performs.

1. Duguid argues that Congress’s “predominant

concern” in enacting the TCPA was “not just about calls

to random or sequential numbers, but about how ‘computer driven telemarketing tools ha[d] caused the frequency and number of unsolicited telemarketing calls

[to] increase markedly.’ ” Br. 34 (quoting H.R. Rep. No.

317, 102d Cong., 1st Sess. 6 (1991) (House Report)). He

emphasizes Congress’s findings about the privacy

harms caused by unrestricted telemarketing and the

“proliferation of [such] intrusive, nuisance calls.” Br. 28

(quoting TCPA § 2(6), 105 Stat. 2394). He highlights a

13

brief discussion from the House Report of the telemarketing industry’s use of databases of current and prospective clients. See Br. 34-35 (citing House Report 67). And he flags (Br. 36-37) broad concerns about telemarketing calls noted in congressional hearings. None

of that supports his argument here.

The telemarketing abuses that the TCPA as a whole

addresses doubtless extend beyond the abuses that

Congress associated with random or sequential number

generators. It does not follow, however, that Section

227(a)(1)(A)’s definition of “automatic telephone dialing

system” must encompass devices that do not use such

generators. The TCPA prohibits calls that are made to

specified sensitive categories of telephone numbers

(e.g., cell phones and emergency telephone lines) “using

any automatic telephone dialing system or an artificial

or prerecorded voice.” 47 U.S.C. 227(b)(1)(A) (emphasis

added). 1 A separate TCPA provision bans certain calls

to residential telephone lines. 47 U.S.C. 227(b)(1)(B).

That provision prohibits calls “using an artificial or prerecorded voice,” but it contains no reference to an automatic telephone dialing system. Ibid. And another provision authorizes the FCC to “prescribe regulations to

implement [additional] methods and procedures” for

protecting “residential telephone subscribers’ privacy

rights to avoid receiving telephone solicitations to which

they object,” also without reference to automatic telephone dialing systems. 47 U.S.C. 227(c)(1)-(2).

In enacting the TCPA, Congress appears to have

been principally concerned with protecting consumers’

residential privacy. Congress found that “consumers

See also 47 U.S.C. 227(b)(1)(D) (prohibiting the use of an automatic telephone dialing system “in such a way that two or more telephone lines of a multi-line business are engaged simultaneously”).

1

14

[we]re outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers” and that

“[b]anning such automated or prerecorded telephone

calls to the home * * * [wa]s the only effective means

of protecting telephone consumers from this nuisance

and privacy invasion,” TCPA § 2(6) and (12), 105 Stat.

2394-2395. The TCPA’s lead Senate sponsor colorfully

described such calls as “the scourge of modern civilization,” “hound[ing] us until we want to rip the telephone

right out of the wall.” 137 Cong. Rec. 30,821 (1991)

(statement of Sen. Hollings). And the Senate and

House Reports describe the law’s purpose as, first and

foremost, “protect[ing] the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home.” Senate Report 1; see House Report 5 (“The purpose of the

bill * * * is to protect residential telephone subscriber

privacy rights.”). 2

Duguid is correct that, in order to vindicate those

privacy interests, the TCPA prohibits a substantial set

of automated calls that do not involve any random or sequential number generator. Congress achieved that objective, however, not by adopting the broad definition of

“automatic telephone dialing system” that Duguid advocates, but by separately prohibiting calls made using

In 1991, residential landlines were far more widely used than cell

phones. In 1991, only 7.5 million of the country’s 253 million people

owned a cell phone. See Chamber of Commerce Amici Br. 9 (citing

In re Implementation of Section 6002(B) of the Omnibus Budget

Reconciliation Act of 1993, 10 FCC Rcd 8844, 8874 Tbl.1 (1995)).

And even for those individuals, cell-phone plans were limited—

measured in costly minutes, rather than the unlimited talk and text

plans that prevail today. Ibid. In that environment, it would have

made little sense for telemarketers or Congress to treat calls to cell

phones as their central focus.

2

15

an “artificial or prerecorded voice,” regardless of the

technology used. 47 U.S.C. 227(b)(1)(A) and (B). Indeed, with respect to the nuisance calls to residential

telephone lines that were the 1991 Congress’s primary

concern, Duguid’s broader reading of Section 227(a)(1)(A)

would provide no additional increment of protection,

since the TCPA provision that governs calls to residential telephone lines prohibits “artificial or prerecorded

voice” calls but contains no reference to automatic telephone dialing systems. See 47 U.S.C. 227(b)(1)(B).

2. Duguid contends (Br. 32) that construing Section

227(a)(1)(A) to require use of a random or sequential

number generator would advance “no rational policy.”

That is wrong. The legislative record identifies several

specific problems that use of such number generators

can cause or exacerbate.

First, legislators and others expressed concern that

“automatic dialers [that] dial numbers in sequence” can

“t[ie] up all the lines of a business,” and that the resulting problem was particularly acute when “automated

calls [we]re placed to lines reserved for emergency purposes, such as hospitals and fire and police stations.”

Senate Report 2; see House Report 10 (noting that autodialers often “dial sequential blocks of telephone

numbers, * * * includ[ing] those of emergency and

publish service organizations,” and thereby “ ‘seize’

[the] recipient’s telephone line and not release it until

the prerecorded message is played”); see also House

Report 24; S. 1462, The Automated Telephone Consumer Protection Act of 1991; S. 1410, The Telephone

Advertising Consumer Protection Act; and S. 857,

Equal Billing For Long Distance Charges: Hearing

Before the Senate Subcomm. on Communications of the

Comm. on Commerce, Science, and Transportation,

16

102d Cong., 1st Sess. 33 (1991) (Senate Commc’ns Subcomm. Hr’g) (statement of Richard A. Barton, Sr. Vice

President, Direct Marketing Ass’n) (endorsing a “ban

[on] sequential and random dialing because of the great

difficulties that they cause in hospital emergency

rooms”).

Second, legislators and witnesses worried that autodialed calls to lists of random or sequential numbers

could reach even unlisted telephone numbers (like patient and guest rooms at healthcare facilities). See Senate Report 2 (“Having an unlisted number does not prevent those telemarketers that call numbers randomly or

sequentially.”); House Report 10 (“Telemarketers often

program their systems to dial sequential blocks of telephone numbers, which have included * * * unlisted telephone numbers.”); Telemarketing/Privacy Issues:

Hearing Before the Subcomm. Telecommunications

and Finances of the House Comm. on Energy and Commerce, 102d Cong., 1st Sess. 1 (1991) (1991 House Telecommc’ns Subcomm. Hr’g) (statement of Rep. Markey)

(“These machines place calls randomly, meaning they

sometimes call unlisted numbers.”).

Third, legislators and witnesses expressed concern

that random and sequential dialing often resulted in

costly, unwanted, and unintended calls to pagers and

cell phones. See Senate Report 2 (“[U]nsolicited calls

placed to * * * cellular or paging telephone numbers

often impose a cost on the called party.”). Witnesses

explained that cellular and paging services were

“unique[ly] vulnerab[le] * * * to automatic telephone

dialers” because “mobile carriers obtain large blocks of

consecutive phone numbers for their subscribers.” Senate Commc’ns Subcomm. Hr’g 45-46 (statement of

Thomas Stroup, President, Telocator). Accordingly,

17

“automatic dialer transmitted calls can run through

whole groups of paging and cellular numbers at one

time” and thus can “seiz[e] a paging carrier’s facilities”

in a manner that “effectively block[s] service to its customers.” Id. at 46; see 1991 House Telecommc’ns Subcomm. Hr’g 112 (statement of Michael J. Frawley, President, Gulf Coast Paging) (“Programmed ‘autodialer’

calls can and have run through whole blocks of numbers

assigned to mobile users, * * * producing unwanted

and expensive calls to cellular subscribers.”).

Because health professionals often relied on paging

services, witnesses complained that in some instances,

as a result of autodialed calls, “[l]ives literally ‘hung in

the balance’ while hospitals were unable to page doctors, to reach code blue teams, rescue squads, etc.” Telemarketing Practices: Hearing Before the Subcomm.

on Telecommunications and Finance of the House

Comm. on Energy and Commerce on H.R. 628, H.R.

2131, and H.R. 2184, 101st Cong., 1st Sess. 79 (1989)

(1989 House Telecommc’ns Subcomm. Hr’g) (statement

of Steven Seltzer, President, Modern Commc’ns Corp.).

In other cases, witnesses worried that organ transplant

candidates, who were provided free paging services to

be notified when an organ had been found, were receiving errant telemarketing calls from autodialers,

“caus[ing] extreme emotional distress to the candidates

and their families.” 1991 House Telecommc’ns Subcomm. Hr’g 113 (statement of Michael J. Frawley, President, Gulf Coast Paging).

Based on the technological limitations that existed at

the time, witnesses explained that “everyone—the consumer, the telemarketer, and the service provider—

loses when telemessaging calls are placed to numbers

assigned to pagers and to cellular phones.” 1989 House

18

Telecommc’ns Subcomm. Hr’g 94 (testimony of Steven

Seltzer, President, Modern Commc’ns Corp.). The

problems persisted, however, “because the people using

the autodialers * * * [we]re not really aware of exactly

what they [we]re doing.” Ibid. They simply “enter[ed]

a starting range and an ending range of numbers” with

“no idea whose phone numbers * * * [we]re within that

range.” Ibid.

3. Given the increasing prevalence of cell phones

and the pervasive use of text messaging, automated text

messages today might plausibly be regarded as the

“modern equivalent of the prerecorded or artificial

voice robocall[s]” that Congress largely prohibited in

1991. EPIC Amicus Br. 7. Duguid’s own experience

suggests that unwanted text messages can subject consumers to “the same kind of frustration” caused by prerecorded-voice calls to cell phones or residential telephone lines. Ibid.; see Senate Report 4 (noting that

calls made using an artificial or prerecorded voice “do

not allow the caller to feel the frustration of the called

party”). It was plainly rational, however, for the 1991

Congress to focus on the unique burdens posed by the

use of random or sequential number generators under

then-prevailing technological circumstances. Whether

subsequent technological changes warrant an expansion of the automated-call restriction is a decision for

today’s Congress, not this Court.

D. Policy Concerns Provide No Sound Reason To Reject

The Most Natural Interpretation Of Section 227(a)(1)(A)

1. Duguid argues that adopting the government’s

reading of Section 227(a)(1)(A) would limit the TCPA’s

definition of “automatic telephone dialing system” to “a

small universe of rapidly obsolescing” machines. Br. 38

19

(citation omitted). He contends that adopting that construction “would unleash [a] torrent of robocalls.” Ibid.

(emphasis omitted). But the possibility that developments in technology and patterns of use may diminish

the practical effect of a statutory provision provides no

sound basis for the Court to adopt anything other than

the best reading of the statutory text. See U.S. Br. 3233. In any event, Duguid’s concerns are overstated.

Regardless of the scope of the TCPA’s definition of

“automatic telephone dialing system,” the statute will

continue to prohibit robocalls that deliver a artificial or

prerecorded voice, rather than connecting a live operator, and are placed to cell phones, emergency telephone

lines, guest or patient rooms at healthcare facilities, or

residential telephone lines. 3 Unless a call is made for

emergency purposes or with the consent of the called

party, the TCPA prohibits calls using an artificial or

prerecorded voice to any of those telephone lines,

whether or not an automatic telephone dialing system is

used. See p. 13, supra. The TCPA therefore will continue to prohibit the alleged conduct that led to the settlement (see Duguid Br. 43) in Abdeljalil v. General

Electric Capital Corp., No. 12-cv-2078 (S.D. Cal. filed

Aug. 22, 2012). See Third Am. Compl. ¶ 15, Abdeljalil,

supra (No. 12-cv-2078) (alleging the receipt of numerous unconsented-to calls to a cell phone “using an ‘artificial or prerecorded voice’ * * * on almost a daily basis

for approximately three months”).

Other federal and state restrictions likewise protect

consumers from nuisance calls, whether or not an auto-

See Federal Trade Comm’n, Robocalls, https://go.usa.gov/x7N7v

(last visited Nov. 16, 2020) (“If you answer the phone and hear a

recorded message instead of a live person, it’s a robocall.”).

3

20

matic telephone dialing system is used. See FCC, Report on Robocalls, CG Docket No. 17-59, at 3 (Feb.

2019), https://go.usa.gov/x7NAU; see also Quicken

Loans Amicus Br. 16-23; Midland Credit Mgmt. Amicus

Br. 29-31. For example, the Telemarketing Sales Rule,

60 Fed. Reg. 43,842 (Aug. 23, 1995) (16 C.F.R. Pt. 310),

imposes nationwide do-not-call restrictions. Pursuant

to that regulation, consumers may register their residential and cell phone numbers in the National Do-NotCall Registry. Telemarketers are prohibited from calling any telephone number in that registry without an

established business relationship or the consumer’s express prior consent. 16 C.F.R. 310.4(b)(1)(iii)(B); see

47 C.F.R. 64.1200(c)(2). Telemarketers violating these

rules may be subject to federal or state enforcement actions, as well as private suits in some circumstances.

See 47 U.S.C. 227(c)(5); 16 C.F.R. 310.7.

The Fair Debt Collection Practices Act (FDCPA),

15 U.S.C. 1692 et seq., makes it unlawful for a debt collector to call a person who has notified the debt collector

in writing that the consumer “wishes the debt collector

to cease further communication with the consumer.”

15 U.S.C. 1692c(c). Any debt collector who violates that

restriction is liable to the individual for actual damages

and “such additional damages as the court may allow,”

not to exceed $1000 in an individual action or $500,000

in a class action. 15 U.S.C. 1692k(a)(2)(A).

In addition, the FCC has recently issued a series of

orders that allow voice-service providers to adopt certain prophylactic measures, including: (i) automatically

blocking calls that the provider reasonably determines

are unwanted, see In re Advance Methods to Target &

Eliminate Unlawful Robocalls, 35 FCC Rcd 7614

(2020); (ii) offering default robocall-blocking programs,

21

see In re Advance Methods to Target & Eliminate

Unlawful Robocalls, 34 FCC Rcd 4876 (2019); and

(iii) blocking calls from invalid or unused numbers and

numbers that have been placed on a do-not-originate

list, see In re Advance Methods to Target & Eliminate

Unlawful Robocalls, 32 FCC Rcd 9706 (2017). Even before the 2020 order, AT&T reported having blocked

nearly 4.3 billion calls since 2016 under such programs,

and Comcast reported blocking more than 158 million

robocall attempts in December 2019 alone. See FCC,

Call Blocking Tools Now Substantially Available to

Consumers: Report on Call Blocking, CG Docket No.

17-59, at 12, 15 (June 2020), https://go.usa.gov/x7EKG.

Congress has directed the FCC to ensure that providers

offer such “robocall blocking services” at no additional

charge. See Pallone-Thune TRACED Act, Pub. L. No.

116-105, § 10(b), 133 Stat. 3284 (47 U.S.C. 227( j)). None

of these programs depends on the definition of “automatic telephone dialing system” in Section 227(a)(1)(A).

2. By contrast, Duguid’s construction of Section

227(a)(1)(A) could potentially sweep in every modern

smartphone. See U.S. Br. 33-34.

To fend off that possibility, Duguid endorses (Br. 31,

45) the Ninth Circuit’s view that Section 227(a)(1) is limited to devices that are capable of dialing telephone

numbers “automatically.” But the relevant prong of the

definition states only that the equipment must have the

“capacity * * * to dial [the stored or produced] numbers.” 47 U.S.C. 227(a)(1)(B). It does not use the word

“automatic” or “automatically.” And while Duguid suggests (Br. 31) that such a requirement is implied, any

telephone might be described as having the capacity

to dial telephone numbers, even though human intervention is required.

22

Duguid also points out that “the TCPA’s robocalling

prohibition applies only when a call is made using an”

automatic telephone dialing system. Br. 47; see 47 U.S.C.

227(b)(1)(A). Duguid suggests that, even if an ordinary

smartphone is an “automatic telephone dialing system,”

Section 227(b)(1)(A)’s restrictions on automated calls to

cell phones and other specialized lines will apply only to

“calls made using the equipment’s [automatic telephone

dialing system] functionality.” Br. 47 (citation omitted).

But that limiting construction of Section 227(b)(1)(A)

would not solve the problem. If the Court adopts

Duguid’s reading of Section 227(a)(1)(A), but does not

construe Section 227(a)(1)(B) to require the capacity to

dial stored numbers automatically, then every telephone call from an ordinary smartphone’s contact list

will use the “capacities that define autodialing equipment,” ibid., i.e., the capacities to “store” telephone

numbers and to “dial” them.

Finally, Duguid notes the absence of any evidence

that individual consumers have been or will be sued

“based on typical use of smartphone technology.” Br.

45 (citation omitted). The absence of such suits may reflect the fact that some lower courts, having endorsed

Duguid’s preferred interpretation of Section 227(a)(1)(A),

have adopted one or more of his proposed narrowing

constructions of other TCPA language to ensure that

the automated-call restriction does not cover ordinary

smartphone uses. It may also reflect the absence of any

significant economic incentive to bring suits against ordinary smartphone users, even if a violation could be

shown. Duguid thus may be correct that resolving the

question presented here in his favor would not inevitably produce widespread liability for typical smartphone

uses. The more straightforward way of avoiding that

23

result, however, is to hold, in accordance with the most

natural reading of Section 227(a)(1)(A)’s text, that the

capacity to use a random or sequential number generator to store or produce numbers is a necessary attribute

of an “automatic telephone dialing system.” 47 U.S.C.

227(a)(1)(A).

* * * * *

For the foregoing reasons and those stated in our

opening brief, the judgment of the court of appeals

should be reversed.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

NOVEMBER 2020