Supreme Court’s pro-Facebook ruling could trigger a ‘flood’ of automated calls

A Supreme Court ruling today in favor of Facebook limits the scope of a 1991 U.S. law that bans certain types of automated calls and texts. The court ruled that the automatic anti-call law only applies to systems capable of generating random or sequential phone numbers. Systems that do not have this capability are therefore not considered automatic dialers within the meaning of the law, even though they can store numbers and send calls and SMS automatically.

Supporters say the ruling will make it more difficult to block automated calls and texts, potentially triggering a “flood” of new robocalls.

The decision “overturns one of the most important protections against unwanted robocalls: the Consumer Protection Act by Telephone (TCPA) ban against automatically dialed calls and text messages to cell phones without the consent of the party called, ”said the National Consumer Law Center (NCLC), which had filed a brief in the case.

“Businesses will use autodialers that are not covered by the narrow Supreme Court definition to flood our cell phones with even more automated calls and unwanted automated texts,” said Margot Saunders, senior counsel for the group. . The court ruling “interpreted the statutory definition of automatic dialer so narrowly that it applies to few or none of the automatic dialers in use today,” the NCLC also said.

The Facebook system is not an automatic dialer

The Facebook case was decided on a grammar issue, as the court had to decide exactly what Congress meant in a key section of the TCPA. The law places restrictions on calls made with an “automatic telephone numbering system” and defines this term as “equipment which has the capability – (A) of storing or generating telephone numbers to be called, using a dial generator. random or sequential numbers; and (B) to dial such numbers. “

The meaning of that sentence was at the heart of Noah Duguid’s case against Facebook. Today’s court ruling told how the case began:

In 2014, Respondent Noah Duguid received multiple login notification text messages from Facebook warning him that someone had attempted to access the Facebook account associated with his phone number from an unknown browser. But Duguid never had a Facebook account and never gave his phone number to Facebook. Unable to stop the notifications, Duguid filed a putative class action lawsuit against Facebook. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and by programming its equipment to send automated text messages to those numbers whenever the associated account was accessed by a device or web browser. not recognized.

Facebook retorted “that Duguid did not allege that Facebook used an autodialer because it did not claim that Facebook sent text messages to randomly or sequentially generated numbers. Accounts,” said the decision today.

In 2017, the U.S. District Court for the Northern District of California ruled in favor of Facebook and dismissed Duguid’s case. But the U.S. Court of Appeals for the 9th Circuit reversed that ruling, ruling that a system can be an automatic dialer even if it does not use a random or sequential generator to store numbers, as long as it does it has the ability to “store numbers to be called” and “to automatically dial those numbers. “

The Supreme Court ruled to hear the case, noting that another circuit appeals court had ruled differently from the 9th circuit, creating a conflict between the appeals courts over whether an automatic dialer should be able to generate random or sequential phone numbers. Today, the Supreme Court overturned the judgment of the 9th Circuit.

The court opinion drafted by Judge Sonia Sotomayor said:

The question before the Court is whether this definition encompasses equipment which can “store” and dial telephone numbers, even if the device does not provide us with information.[e] a random or sequential number generator. “This is not the case. To qualify as an ‘automatic telephone numbering system’, a device must have the capability of storing a telephone number using a random or sequential generator or of producing a telephone number. phone using a or sequential number generator.

Facebook’s notification system is not an automatic dialer because it “does not store or produce numbers” using a random or sequential number generator, “the court concluded. The nine judges all agreed with the ruling, although Judge Samuel Alito filed an opinion questioning some of the court’s reasoning while approving the judgment.

Justice explains grammar rules

Sotomayor’s opinion explained the grammatical question on which the case turned:

We start with the text. Congress has defined an automatic dialer in terms of what it should do (“store or generate phone numbers to call”) and how it should do it (“using a random or sequential number generator”). The definition uses a familiar structure: a list of verbs followed by an modifier clause. According to conventional rules of grammar, “[w]When there is a simple parallel construction that involves all of the nouns or verbs in a series, “a modifier at the end of the list” normally applies to the entire series. “The Court often applies this rule of interpretation, generally referred to as a” serial-qualifier canon. ” “This canon usually reflects the most natural reading of a sentence. Imagine if a teacher announced that” students don’t have to complete or check homework for a grade, using online homework help websites . “It would be strange to read this rule as prohibiting students from completing their homework, with or without online assistance.

With the law of automatic calling, “the canon of serial qualifiers recommends qualifying the two antecedent verbs,” store “and” produce, “with the phrase” using a random or sequential number generator, “” wrote Sotomayor. This grammatical interpretation is “the most natural construction” and is supported by other legal texts, the judges have found.

“The statutory context confirms that the definition of the TCPA automatic dialer excludes equipment that does not use a random or sequential number generator,” said the opinion. “Congress has found autodialer technology to be harmful because autodialers can dial emergency lines at random or tie all numbered phone lines sequentially to a single entity. Facebook’s interpretation of [the TCPA] better matches the scope of the TCPA to these specific concerns. Duguid’s interpretation, on the other hand, would encompass any equipment that stores and dials phone numbers. “

The court also said: “It would hardly make sense … to classify as automatic dialers all equipment with the capacity to store and dial phone numbers, including virtually all modern cell phones.”

Congress could act as outrageous move

US Senator Edward Markey (D-Mass.), One of the TCPA authors in 1991, and Representative Anna Eshoo (D-California) issued a joint statement calling the decision “disastrous.”

“Today, the Supreme Court has thrown aside years of precedent, clear legislative history and essential consumer protection to deliver a disastrous decision for anyone who owns a cell phone in the United States,” lawmakers said. “When the TCPA was introduced, it was clear that Congress wanted to ban numbering from a database. By restricting the scope of the TCPA, the court allows companies to attack the public with a non-stop wave of unwanted calls and texts around the clock. “

Markey and Eshoo said they “plan to introduce legislation soon to change the TCPA, correct the court’s error and protect consumers.”

Consumer Reports urged Congress to act quickly. “Relying on a tense reading of punctuation in the definition of ‘autodialer’, the court ruled that the technology involved, which Facebook was using to send automated texts to its users, fell through the cracks of the definition “said Consumer Reports. “As a result, prior consent is not required to trigger a potentially unlimited number of calls and texts using this technology, and there is no enforceable way for a consumer to stop them.”