Joint Trades Comment Letter re Facebook v. Duguid

INTRODUCTION AND SUMMARY OF ARGUMENT

Modern businesses must communicate with their customers in a rapid, efficient manner. This isn’t only because businesses want to provide excellent customer service. Customers expect, and even demand, routine communications like health care appointment reminders, delivery notifications, low-balance alerts, and fraud warnings. Consumers rely on these communications to carry out their responsibilities, organize their financial affairs, and protect their health and safety.

As it stands, businesses face impossible choices when making these communications, and so customers are deprived of them. In 1991, Congress passed the Telephone Consumer Protection Act and its so-called “ATDS” provision, which made it unlawful to call hospital rooms, 911 operators, and wireless numbers—but not landlines—using an “automatic telephone dialing system,” defined as “equipment which has 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 provision targeted a specific, now-eradicated practice: telemarketers whose equipment randomly or sequentially dialed numbers and thereby shut down hospital switchboards, knocked out nascent cellular networks, and aggravated consumers with pricey per-minute charges.

Some federal courts, perhaps unhappy with the limited scope of Congress’s efforts, have rewritten the ATDS prohibition. Under Marks v. Crunch San Diego, the ATDS provision covers equipment that merely has the “capacity” to “store[] numbers and dial[] them automatically.” 904 F.3d 1041, 1053 (9th Cir. 2018). That overly broad reading arguably captures nearly every modern calling device, from the equipment that organizations use to make these communications to the smartphone in your pocket. As a result, callers risk litigation—and at least $500 in damages per call, with $1500 for willful violations—every time they try to deliver essential, desired, and often time-sensitive communications.

Marks is wrong. As Facebook and the United States explain, it badly misconstrues the TCPA’s text, context, and history. But even if Marks’s reading of the statute were plausible, it still would have to be rejected. By treating every smartphone as an ATDS and by threatening liability for billions of legitimate calls and texts from organizations of all stripes, Marks violates the First Amendment.

I. 1. Marks overlooked the TCPA’s history and context. In 1991, the vast majority of Americans used residential telephone lines as their primary means of communication, so businesses called these lines to provide information to their customers. Had Congress been concerned about such calls, it would have restricted ATDS calls to landlines, not merely hospital rooms, emergency lines, and wireless numbers. Marks ignored this distinction, threatening the business communications that Congress sought to protect.

2. Marks also reasoned that the TCPA must target calls from a list (not just randomly directed calls) because it exempts calls made with consent and calls to collect government-backed debt. There is no inconsistency. The TCPA has been construed to cover calls from equipment with the capacity to generate random numbers, not just calls actually placed at random. Recipients can of course consent to such calls.

Marks also reasoned that Congress ratified its view in the debt-collection exemption. But this Court has since severed that exemption. It therefore cannot represent a “valid expression of the legislative intent.” Frost v. Corp. Comm’n, 278 U.S. 515, 527 (1929).

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