No. 19-631
`IN THE
`Supreme Court of the United States
`
`
`
`WILLIAM P. BARR, ATTORNEY GENERAL; FEDERAL
`COMMUNICATIONS COMMISSION,
`Petitioners,
`
`
`
`
`
`
`
`
`
`v.
`AMERICAN ASSOCIATION OF POLITICAL CONSULTANTS,
`INC., ET AL.,
`
`
`
`
`
`
`
`Respondents,
`
`
`
`
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Fourth Circuit
`
`
`
`
`
`
`
`
`
`BRIEF FOR AMICUS CURIAE
`CHAMBER OF COMMERCE OF
`THE UNITED STATES OF AMERICA
`IN SUPPORT OF RESPONDENTS
`
`
`
`
`
`
`
`STEVEN P. LEHOTSKY
`TARA S. MORRISSEY
`U.S. CHAMBER
`LITIGATION CENTER
`1615 H St., N.W.
`Washington, DC 20062
`
`
`SHAY DVORETZKY
` Counsel of Record
`JEFFREY R. JOHNSON
`JONES DAY
`51 Louisiana Ave., N.W.
`Washington, DC 20001
`(202) 879-3939
`sdvoretzky@jonesday.com
`Counsel for Amicus Curiae
`Chamber of Commerce of the United States of America
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`
`WILLIAM P. BARR, ATTORNEY GENERAL; FEDERAL
`COMMUNICATIONS COMMISSION,
`Petitioners,
`
`
`
`
`
`
`
`
`
`v.
`AMERICAN ASSOCIATION OF POLITICAL CONSULTANTS,
`INC., ET AL.,
`
`
`
`
`
`
`
`Respondents,
`
`
`
`
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Fourth Circuit
`
`
`
`
`
`
`
`
`
`BRIEF FOR AMICUS CURIAE
`CHAMBER OF COMMERCE OF
`THE UNITED STATES OF AMERICA
`IN SUPPORT OF RESPONDENTS
`
`
`
`
`
`
`
`STEVEN P. LEHOTSKY
`TARA S. MORRISSEY
`U.S. CHAMBER
`LITIGATION CENTER
`1615 H St., N.W.
`Washington, DC 20062
`
`
`SHAY DVORETZKY
` Counsel of Record
`JEFFREY R. JOHNSON
`JONES DAY
`51 Louisiana Ave., N.W.
`Washington, DC 20001
`(202) 879-3939
`sdvoretzky@jonesday.com
`Counsel for Amicus Curiae
`Chamber of Commerce of the United States of America
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`
`Page
`TABLE OF AUTHORITIES ....................................... ii
`INTEREST OF AMICUS CURIAE ............................ 1
`SUMMARY OF ARGUMENT .................................... 3
`ARGUMENT ............................................................... 8
`I. THE ATDS PROVISION HAS BECOME A
`TREMENDOUS SOURCE OF MERITLESS
`LITIGATION ............................................................. 8
`A. Congress Targeted Random and
`Sequential Dialing Machines .......................... 8
`B. The FCC Creates Uncertainty and
`Chaos Ensues ................................................. 11
`C. Meritless ATDS Litigation Still Plagues
`the Federal Courts ......................................... 12
`II. THIS COURT SHOULD INVALIDATE THE
`PROHIBITION IF IT CONCLUDES THAT THE
`TCPA’S SCHEME IS UNCONSTITUTIONAL .............. 18
`A. Precedent and Policy Require Striking
`the Ban, Not Severing the Exemption .......... 19
`B. The Government’s Arguments Are
`Wrong ............................................................. 23
`III.CALLERS MAY NOT BE HELD LIABLE FOR
`CALLS PLACED UNDER AN
`UNCONSTITUTIONAL REGIME ................................ 30
`CONCLUSION ......................................................... 32
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`CASES
`ACA Int’l v. FCC,
`885 F.3d 687 (D.C. Cir. 2018) .............. 1, 11, 12, 15
`Ammons v. Ally Fin., Inc.,
`2018 WL 3134619
`(M.D. Tenn. June 27, 2018) ................................. 14
`Ark. Writers’ Project, Inc. v. Ragland,
`481 U.S. 221 (1987) .............................................. 20
`AT&T Mobility LLC v. Concepcion,
`563 U.S. 333 (2011) .............................................. 17
`Carey v. Brown,
`447 U.S. 455 (1980) .............................................. 20
`City of Cincinnati v. Discovery Network, Inc.,
`507 U.S. 410 (1993) .............................................. 21
`Dominguez v. Yahoo, Inc.,
`894 F.3d 116 (3d Cir. 2018).................................. 13
`Dorchy v. Kansas,
`264 U.S. 286 (1924) .............................................. 24
`Duguid v. Facebook, Inc.,
`926 F.3d 1146 (9th Cir. 2019) .............................. 15
`Fitzhenry v. ADT Corp.,
`2014 WL 6663379
`(S.D. Fla. Nov. 3, 2014) ........................................ 17
`Frost v. Corporation Commission,
`278 U.S. 515 (1929) ........................................ 26, 27
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Gadelhak v. AT&T Servs., Inc.,
`950 F.3d 458 (7th Cir. 2020) .......................... 13, 14
`Glasser v. Hilton Grand Vacations Co.,
`948 F.3d 1301 (11th Cir. 2020) ...................... 13, 14
`Golan v. FreeEats.com, Inc.,
`930 F.3d 950 (8th Cir. 2019) ................................ 16
`Grayned v. City of Rockford,
`408 U.S. 104 (1972) ............................ 19, 20, 30, 31
`Greater New Orleans Broad. Ass’n v.
`United States,
`527 U.S. 173 (1999) .............................................. 24
`In re Cargo Airline Ass’n Pet. for
`Expedited Declaratory Ruling,
`29 FCC Rcd. 5056 (2014) ..................................... 22
`In re Rules & Regs. Implementing the
`TCPA,
`7 FCC Rcd. 8752 (1992) ....................................... 10
`In re Rules & Regs. Implementing the
`TCPA,
`10 FCC Rcd. 12391 (1995).................................... 10
`In re Rules & Regs. Implementing the
`TCPA,
`18 FCC Rcd. 14014 (2003).............................. 11, 26
`In re Rules & Regs. Implementing the
`TCPA,
`30 FCC Rcd. 7961 (2015) ................... 11, 17, 22, 31
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Jiminez v. Credit One Bank, N.A.,
`377 F. Supp. 3d 324 (S.D.N.Y. 2019) ................... 14
`Lucia v. SEC,
`138 S. Ct. 2044 (2018) .......................................... 21
`Marks v. Crunch San Diego, LLC,
`904 F.3d 1041 (9th Cir. 2018) ........................ 13, 15
`Minneapolis Star & Tribune Co. v.
`Minn. Comm’r of Revenue,
`460 U.S. 575 (1983) .............................................. 21
`New York Times Co. v. Sullivan,
`376 U.S. 254 (1964) .............................................. 28
`Osorio v. State Farm Bank, F.S.B.,
`746 F.3d 1242 (11th Cir. 2014) ............................ 15
`PDR Network, LLC v. Carlton & Harris
`Chiropractic, Inc.,
`139 S. Ct. 2051 (2019) .......................................... 14
`Police Dep’t of the City of
`Chicago v. Mosley,
`408 U.S. 92 (1972) ................................................ 19
`Rappa v. New Castle County,
`18 F.3d 1043 (3d Cir. 1994)............................ 21, 28
`Reed v. Town of Gilbert,
`135 S. Ct. 2218 (2015) ...................................... 1, 20
`Reno v. ACLU,
`521 U.S. 844 (1997) .............................................. 24
`
`
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Sessions v. Morales-Santana,
`137 S. Ct. 1678 (2017) ........................ 28, 29, 30, 31
`Soppet v. Enhanced Recovery Co.,
`679 F.3d 637 (7th Cir. 2012) ................................ 15
`Sorrell v. IMS Health Inc.,
`564 U.S. 552 (2011) .............................................. 21
`Stoops v. Wells Fargo Bank, N.A.,
`197 F. Supp. 3d 782 (W.D. Pa. 2016) ................... 17
`Sunday Lake Iron Co. v. Wakefield Twp.,
`247 U.S. 350 (1918) .............................................. 27
`Truax v. Corrigan,
`257 U.S. 312 (1921) .............................................. 27
`Ward v. Rock Against Racism,
`491 U.S. 781 (1989) .............................................. 28
`Welsh v. United States,
`398 U.S. 333 (1970) .................................. 28, 29, 31
`Williamson v. Lee Optical of Okla., Inc.,
`348 U.S. 483 (1955) .............................................. 28
`STATUTES
`28 U.S.C. § 2255 ........................................................ 12
`47 U.S.C. § 227 ...................................................passim
`47 U.S.C. § 608 ................................................ 5, 22, 24
`OTHER AUTHORITIES
`47 C.F.R. § 64.1200 .............................................. 10, 25
`
`
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Apple, How To Use Do Not Disturb
`While Driving ....................................................... 14
`Contact Compliance Center,
`Litigator Scrub®, .................................................. 18
`Nick Douglas, Lifehacker, Add an Auto-
`Responder to Do Not Disturb
`(May 7, 2018) .................................................. 14, 15
`FCC, Advanced Methods To Target &
`Eliminate Unwanted Robocalls,
`84 Fed. Reg. 11226 (Mar. 26, 2019) ..................... 15
`FCC, Telephone Consumer Protection Act
`of 1991, 57 Fed. Reg. 48333 (1992) ...................... 10
`Fed. Judicial Ctr., Federal Judicial
`Caseload Statistics 2019 Tables
`(Mar. 31, 2019) ..................................................... 12
`JDSupra, Happy Halloween
`TCPALand!: More Ghoulish TCPA
`Statistics to Freak You Out
`(Nov. 1, 2018) ........................................................ 17
`Letter from Rita Bratcher, Financial
`Management Service, U.S.
`Department of the Treasury, to
`Kevin Martin, FCC, CC Docket No.
`02-278 (filed Jan. 26, 2007) .................................. 18
`
`
`
`
`
`
`
`vii
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Letter from Scott Johnson, Financial
`Management Service, U.S.
`Department of the Treasury, to
`Marlene Dortch, FCC, CC Docket No.
`02-278 (filed May 20, 2010) .................................. 18
`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 Subcomm.
`on Commc’ns of the Senate Commerce,
`Sci., & Transp., 102d Cong. 45 (1991) ................... 9
`S. 1462, The Automated Telephone
`Consumer Protection Act of 1991:
`Hearing Before the Subcomm. on
`Commc’ns of the Senate Commerce,
`Sci. & Transp., 102d Cong. 43 (1991) .................... 9
`WebRecon LLC, WebRecon Stats for Dec
`2017 & Year in Review ........................................ 12
`WebRecon LLC, WebRecon Stats for Oct
`2019: Litigation Up Across the Board ........... 13, 18
`
`
`
`
`
`
`
`
`
`
`
`INTEREST OF AMICUS CURIAE1
`The Chamber of Commerce of the United States of
`America (the “Chamber”) is the world’s largest
`business federation. It represents approximately
`300,000 direct members and indirectly represents an
`underlying membership of three million businesses
`and professional organizations of every size, in every
`economic sector, and from every region of the country.
`An important function of the Chamber is to
`represent the interests of its members in matters
`before Congress, the Executive Branch, and the courts.
`To that end, the Chamber regularly files amicus curiae
`briefs in cases that raise issues of concern to the
`nation’s business community, including in cases
`concerning the scope of liability under the Telephone
`Consumer Protection Act, see, e.g., ACA Int’l v. FCC,
`885 F.3d 687 (D.C. Cir. 2018) (the Chamber as
`petitioner), and the First Amendment rights of
`businesses, see, e.g., Reed v. Town of Gilbert, 135 S. Ct.
`2218 (2015).
`
`
`
`
`
`1 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, amicus’s members, or amicus’s counsel made a monetary
`contribution to fund the preparation or submission of this brief.
`
`
`
`
`
`2
`
`Section 227(b)(1)(A)(iii) of the Telephone Consumer
`Protection Act of 1991 prohibits the use of an
`“automatic telephone dialing system” (or “ATDS”) to
`“make any call” to “any telephone number assigned to
`a … cellular telephone service” without the recipient’s
`“prior express consent.” With shocking frequency,
`businesses find themselves sued under this once-
`obscure provision because
`they used ordinary
`equipment to send ordinary calls or texts to their
`customers. These communications provide helpful
`information to consumers, such as security alerts,
`shipping notifications, and other important notices.
`Yet litigation against these communications seeks to
`leverage judicial disagreement about the scope of the
`law, relatively low barriers to class certification, and
`significant statutory damages into seven- or eight-
`figure payouts. It often works.
`In 2015, Congress shielded from this maelstrom
`calls and texts “made solely to collect a debt owed to or
`guaranteed by the United States.” 47 U.S.C.
`§ 227(b)(1)(A)(iii). The Chamber takes no position on
`whether the TCPA now violates the First Amendment.
`But it agrees with Respondents that, if it does, the
`remedy is to do what this Court has always done in
`such circumstances: open up speech by striking the
`prohibition, not restrict speech by severing the
`exemption. That result is particularly appropriate
`given the TCPA litigation sweeping the country.
`
`
`
`
`
`
`
`
`
`
`3
`
`SUMMARY OF ARGUMENT
`I. Congress passed section 227(b)(1)(A) of the TCPA
`to tackle two problems. First, some telemarketers used
`artificial or prerecorded voice messages
`that
`consumers found particularly aggravating. Second,
`some telemarketers used equipment that randomly or
`sequentially generated and then dialed numbers. This
`undirected dialing caused unique harms; random
`dialing put telemarketers in contact with numbers
`they would never reach on purpose, and sequential
`dialing knocked out nascent wireless and pager
`networks by tying up blocks of consecutive numbers.
`These parts of the TCPA worked; legitimate
`telemarketers stopped using prerecorded or artificial
`voice messages without consent, and everyone stopped
`using random and sequential dialing machines. But
`the FCC then began to suggest that, contrary to its
`earlier views, the ATDS provision might sweep in any
`equipment that automatically dialed from a list.
`Armed with these suggestions—and with the idea that
`courts could not review the legality of the FCC’s
`interpretation in light of the Hobbs Act—the plaintiffs’
`bar began filing suit after suit alleging that ordinary
`communications, placed from ordinary equipment,
`violated
`the TCPA. These
`suits
`jeopardize
`communications that provide consumers with critical
`account updates and other beneficial information.
`The tide of meritless TCPA litigation will continue
`to rise until this Court intercedes. Courts remain
`divided over the scope of the statute—does it cover
`only equipment that randomly or sequentially
`generates numbers, or does it also cover anything that
`dials from a list? That disagreement makes it
`
`
`
`
`
`
`
`4
`
`impossible for businesses to structure their affairs as
`they strive to meet consumer demand for rapid,
`personalized communications. They can’t just refrain
`from using random or sequential dialing equipment,
`because some jurisdictions think that the statute
`sweeps farther. They can’t just avoid equipment that
`dials from a list, because that test covers nearly every
`modern device—including smartphones. And they
`can’t hope to dodge these questions by securing
`recipients’ prior express consent; millions of wireless
`numbers are reassigned every year, so a call or text
`intended for a consenting recipient may well land on
`the phone of a non-consenting one.
`No matter what businesses do, they are likely to get
`sued. And those lawsuits are unusually tough to
`defend. The TCPA provides statutory damages of $500
`per call or text. Because businesses often call or text
`each consumer more than once to provide important
`information or alerts, and because district courts
`certify ATDS classes with relative ease, callers face a
`perfect storm: class actions alleging enormous
`damages under a statute whose scope is subject to
`widespread disagreement. The result is predictable—
`settlement, often in the seven or eight figures, for calls
`and texts that bear no resemblance to those that
`inspired the statute. Unless this Court acts, the TCPA
`litigation machine will continue humming away.
`II. This case provides the Court with one way to do
`that. In 2015, Congress exempted calls made solely to
`collect government-owned or government-backed debt
`from the TCPA’s reach. Defendants facing private
`TCPA litigation—and callers like Respondents who
`wish to place calls without fear of liability—challenged
`the post-amendment TCPA as a content-based
`
`
`
`
`
`
`
`5
`
`restriction on speech. The lower courts agreed that
`this scheme violated the First Amendment, but
`“remedied” that violation by severing the exemption,
`not striking down the prohibition.
`Whether or not Respondents’ First Amendment
`argument—thoroughly addressed in Respondents’
`brief—is correct,
`the Government’s backwards
`remedial conclusion is wrong. The remedy for a First
`Amendment violation is more speech, not less. If the
`TCPA violates the First Amendment, the prohibition
`must go, not the exemption.
`That approach makes sense. Those who successfully
`challenge content-based restrictions should get
`something for their trouble. And if any speech is to be
`restricted in this country, democratically accountable
`legislatures, not courts, should make that decision.
`Moreover, once courts start blue-penciling speech
`codes, they won’t know where to stop. Federal courts
`should not decide what categories of exempt speech
`are “important” enough to keep.
`The Government’s counterarguments misfire. The
`Communications Act’s severability clause does not
`support severing the exemption. The exemption itself
`is not “invalid,” 47 U.S.C. § 608; it restricts no one’s
`speech.
`Instead, Respondents
`challenge
`the
`prohibition, which does restrict their speech, and
`which can be “held invalid” without affecting the rest
`of the TCPA. In any event, this severability clause—
`enacted nearly 90 years ago, as part of a different
`law—deserves little weight here.
`The Government argues that Congress must prefer
`an equally oppressive TCPA to no TCPA at all because
`the statute was around for 24 years before the
`
`
`
`
`
`
`
`6
`
`exemption. But the Government rewrites the TCPA’s
`history. Only after the FCC tried to update the
`statute—and only after the rise of cell phones—did the
`TCPA begin to pinch government debt collectors.
`Congress’s prompt action at that time proves that it
`would prefer no prohibition to one that gores its ox.
`The Government also frets that, without the
`prohibition, consumers will be inundated with calls.
`But the ATDS provision targets random or sequential
`dialing, not computer-assisted calling generally, let
`alone the beneficial kinds of communications now
`swept up in the plaintiffs’ bars crosshairs. Without the
`sweeping ATDS prohibition, Congress could enact
`legislation
`that
`targets
`truly
`unwanted
`communications, such as harassing and fraudulent
`calls. In the meantime, individuals who do not wish to
`receive newly lawful calls can generally opt out.
`The Government further contends that some equal
`protection cases support its position. It disregards
`entirely, however, the First Amendment authorities
`supporting Respondents, claiming that the Court
`simply whiffed in those cases. Even on their own terms,
`the Government’s cases are outdated (because they
`depart
`from modern severability doctrine) or
`distinguishable (because the legislature indisputably
`would have preferred to eliminate the exemption).
`More importantly, the Government’s reliance on
`equal protection analogies in general ignores the
`differences between these provisions. Unlike the
`Fourteenth Amendment’s neutrality with respect to
`legislation, the First Amendment emphatically prefers
`free speech to restricted speech. As a result, the thumb
`on the scale in favor of extending a benefit, strong in
`
`
`
`
`
`
`
`7
`
`the equal protection context, becomes insuperable in
`First Amendment cases. In addition, because it is
`impossible to determine what Congress would have
`wanted in this area without weighing the value of
`various kinds of speech, that perilous task should be
`left for legislators, not judges.
`III. If the Court concludes that the amended TCPA
`is unconstitutional but remedies that flaw by severing
`the exemption, it should make clear that no caller may
`be held liable for calls placed between the enactment
`of the exemption and the decision severing it. This
`Court has repeatedly held that defendants cannot be
`held liable for conduct that took place under an
`unequal scheme, even if a court would remedy that
`inequality by leveling down. That principle applies
`with full force here for calls placed between 2015 and
`now. Happily, immunizing this window of calls would
`also spare defendants from some of the worst
`consequences of TCPA litigation—the deluge of suits
`seeking to hold ordinary businesses liable for ordinary
`calls placed with ordinary equipment.
`
`
`
`
`
`
`
`
`
`8
`
`ARGUMENT
`I. THE ATDS PROVISION HAS BECOME A
`TREMENDOUS SOURCE OF MERITLESS LITIGATION
`As explained below,
`the
`remedy
`for any
`constitutional violation here is to invalidate the
`TCPA’s prohibition on speech, not to sever the
`exemption. The history
`of TCPA
`litigation
`demonstrates that the ATDS provision has been
`extended far beyond its text and purpose, sweeping up
`ordinary communications that Congress never meant
`to prohibit. By following its precedent and striking
`down the prohibition, the Court will bring an end to
`this scourge of unintended litigation.
`A. Congress
`Targeted
`Random
`Sequential Dialing Machines
`1. In the 1980s and early 1990s, telemarketers
`deployed two particularly aggravating techniques.
`First, some used prerecorded or automated voice
`messages, not live operators, to deliver their sales
`pitches. While many found these calls useful—as
`evidenced by the volume of sales they generated—
`others found them intrusive. Some of these machines
`would not disconnect until after they had delivered
`their message, tying up a consumer’s phone long after
`the consumer had hung up. They also deprived
`unwilling recipients of the satisfaction of expressing
`their displeasure to a real person.
`Second, some telemarketers used random and
`sequential dialing equipment to place outbound calls.
`Because these machines dialed unthinkingly, they
`reached numbers that no telemarketer would dare dial
`on purpose—like the “exam rooms, patient rooms,
`offices, labs, emergency rooms, and x-ray facilities” of
`
`and
`
`
`
`
`
`
`
`9
`
`a hospital or the dedicated, unlisted pager number of
`a would-be transplant recipient.2 And because they
`dialed sequentially, they often overloaded then-
`nascent wireless and pager networks (which hosted
`batches of sequential numbers), leaving customers
`unable
`to
`“make
`[]or receive calls,
`including
`emergency notifications to medical personnel.”3
`Congress responded in the TCPA. First, Congress
`made it unlawful to “make any telephone call …
`using … an artificial or prerecorded voice” without the
`“prior express consent of the called party.” 47 U.S.C.
`§ 227(b)(1)(A) (covering calls to specialized lines); see
`id. § 227(b)(1)(B) (similar ban on calls to “residential
`telephone line[s]”). Second, Congress made it unlawful
`to place calls using an “automatic telephone dialing
`system”—defined as equipment
`that
`“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”—to the
`specialized lines most likely to be harmed by them,
`including “emergency telephone line[s],” “guest room[s]
`[and] patient room[s]” at a health care facility, and
`numbers “assigned to a paging service[] [or] cellular
`telephone service.” Id. § 227(b)(1)(A)(i)–(iii). Notably,
`
`
`2 S. 1462, The Automated Telephone Consumer Protection Act
`of 1991: Hearing Before the Subcomm. on Commc’ns of the Senate
`Commerce, Sci., & Transp., 102d Cong. 43, 110 (1991)
`(statements of Michael Jacobsen and Michael J. Frawley).
`3 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 Subcomm. on Commc’ns of the Senate
`Commerce, Sci., & Transp., 102d Cong. 45 (1991) (statement of
`Thomas Stroup).
`
`
`
`
`
`
`
`10
`
`Congress did not protect residential lines from ATDS
`calls. Instead, it empowered residential subscribers to
`opt out and penalized callers who failed to comply with
`such requests. See id. § 227(c)(5).
`2. Contemporary sources recognized the limited but
`important scope of these provisions. As for prerecorded
`or automated voice message telemarketing calls to
`residential lines, legitimate telemarketers either
`secured consent or switched to live-operator calls. And
`the FCC, acknowledging that the TCPA targeted
`telemarketing rather than unwanted calls generally,
`exempted calls “not made for a commercial purpose,”
`calls “made for a commercial purpose but [which] do[]
`not include the transmission of any unsolicited
`advertisement,” calls to persons “with whom the caller
`has an established business relationship,” and calls
`from “tax-exempt nonprofit organizations.” FCC,
`Telephone Consumer Protection Act of 1991, 57 Fed.
`Reg. 48333, 48335 (1992); see 47 C.F.R. § 64.1200(a)(2)
`(current version).
`The ATDS provision was also understood in keeping
`with its limited but important purpose. For example,
`in its initial rulemaking, the FCC explained that
`equipment with “speed dialing,” “call forwarding,” and
`“delayed message” functions does not qualify as an
`ATDS, “because the numbers called are not generated
`in a random or sequential fashion.”4
`this purpose.
`The ATDS provision
`fulfilled
`According to Westlaw, there were just seventeen
`lawsuits between 1991 and 2003 that mentioned the
`
`4 In re Rules & Regs. Implementing the TCPA, 7 FCC Rcd.
`8752, 8776 (1992); see also In re Rules & Regs. Implementing the
`TCPA, 10 FCC Rcd. 12391, 12400 (1995) (same).
`
`
`
`
`
`
`
`11
`
`term “automatic telephone dialing system.” Indeed, by
`2003, the FCC could remark that, “[i]n the past,
`telemarketers may have used dialing equipment to
`create and dial 10-digit telephone numbers arbitrarily,”
`but they no longer did so.5
`B. The FCC Creates Uncertainty and Chaos
`Ensues
`Beginning in 2003, the FCC started to suggest that
`the ATDS provision covered equipment with more
`mundane features: maybe the capacity to dial “at
`random, in sequential order, or from a database of
`numbers”; maybe the capacity to “store or produce
`telephone numbers”; or maybe the capacity to “dial
`numbers without human intervention.”6 But the FCC
`also seemed to recognize the statutory test as well.7 At
`the same time, the FCC increased the importance of
`the ATDS provision by holding that text messages
`qualify as “calls” under the Act.8
`In 2015, the FCC followed its earlier orders with an
`even less comprehensible one.9 It “appear[e]d to be of
`two minds” on the central interpretive question: must
`the “device[] itself have the ability to generate random
`or sequential telephone numbers to be dialed,” or “is it
`enough if the device can call from a database of
`
`
`5 In re Rules & Regs. Implementing the TCPA, 18 FCC Rcd.
`14014, 14092 (2003) (“2003 TCPA Order”) (emphasis added).
`6 Id. at 14091–92.
`7 See id. at 14092.
`8 See id. at 14115.
`9 See In re Rules & Regs. Implementing the TCPA, 30 FCC
`Rcd. 7961 (2015) (“2015 TCPA Order”), vacated in relevant part
`by ACA Int’l, 885 F.3d at 692.
`
`
`
`
`
`
`
`12
`
`telephone numbers generated elsewhere?” ACA Int’l,
`885 F.3d at 701. Because the FCC “espouse[d] both
`competing interpretations,” the D.C. Circuit held that
`it
`flunked
`the
`“requirement
`of
`reasoned
`decisionmaking.” Id. at 703.
`Much of the damage, however, had already been
`done. Armed with the FCC’s prior statements and the
`courts’ muscular interpretation of the Hobbs Act—
`namely, that federal courts must defer without
`question to the FCC’s views in private litigation—the
`plaintiffs’ bar had already transformed the ATDS
`provision from a once-a-year issue into a mainstay of
`federal litigation. For example, the number of TCPA
`suits filed between 2009 and 2016 jumped from fewer
`than one hundred to nearly 5,000.10 (In 2018, federal
`prisoners filed 5,734 motions under 28 U.S.C. § 2255.11)
`Few of these plaintiffs alleged that the defendant
`randomly or sequentially dialed numbers. Instead,
`they sued companies that had simply used computer-
`assisted dialing to contact customers. The ATDS
`provision had strayed far from its text and purpose.
`C. Meritless ATDS Litigation Still Plagues
`the Federal Courts
`The D.C. Circuit’s decision has not stemmed the tide;
`indeed, in the first three months of 2019 alone
`
`
`10 See WebRecon LLC, WebRecon Stats for Dec 2017 & Year
`in Review, https://webrecon.com/webrecon-stats-for-dec-2017-
`year-in-review/.
`11 See Fed. Judicial Ctr., Federal Judicial Caseload Statistics
`2019 Tables,
`tbl. C-3
`(Mar. 31, 2019), available at
`https://www.uscourts.gov/federal-judicial-caseload-statistics-
`2019-tables.
`
`
`
`
`
`
`
`13
`
`plaintiffs filed nearly 3,000 cases. 12 The rush will
`continue unless this Court intervenes.
`1. Modern businesses must communicate with their
`customers, and they must do so in a rapid, efficient
`manner. This isn’t (just) because businesses want to
`contact their customers. Instead, customers expect—
`indeed, demand—routine
`communications
`like
`reminder
`notifications,
`confirmation
`texts,
`promotional offers, and so on. But businesses now face
`impossible choices when doing so.
`Most fundamentally, businesses have no idea what
`kinds of equipment they may use. There is a circuit
`split over the most basic question of all: what makes a
`piece of equipment an ATDS in the first place?
`Compare Gadelhak v. AT&T Servs., Inc., 950 F.3d 458,
`469 (7th Cir. 2020) (“[T]he capacity to generate
`random or sequential numbers is necessary to the
`statutory definition”); Glasser v. Hilton Grand
`Vacations Co., 948 F.3d 1301 (11th Cir. 2020) (same);
`Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir.
`2018) (same), with Marks v. Crunch San Diego, LLC,
`904 F.3d 1041, 1053 (9th Cir. 2018) (reversing
`summary judgment because the equipment “store[d]
`numbers and dial[ed] them automatically”).
`The disagreement does not stop there. A few circuits
`have held that courts may construe the TCPA for
`themselves, without regard to the FCC’s pre-2015
`orders. See, e.g., Marks, 904 F.3d at 1049. But many
`
`
`12 See WebRecon LLC, WebRecon Stats for Oct 2019:
`Litigation Up Across the Board, https://webrecon.com/webrecon-
`stats-for-oct-2019-litigation-up-across-the-board/.
`
`
`
`
`
`
`
`14
`
`district courts elsewhere have disagreed.13 According
`to these courts, the FCC’s pre-2015 statements remain
`valid—and binding under the Hobbs Act—despite the
`D.C. Circuit’s decision in ACA International.14
`Because of this disagreement, businesses cannot
`avoid
`litigation by eschewing equipment
`that
`generates random or sequential numbers. Some courts
`(like the Ninth Circuit) have held that the statute
`sweeps farther, reaching equipment that has the
`capacity to store and dial numbers automatically.
`Others (like many district courts) have held that the
`FCC has unreviewably expanded the statute.
`Callers also can’t escape litigation by avoiding
`equipment with the capacity to store and dial numbers
`automatically, consistent with the Ninth Circuit’s
`definition of an ATDS. That definition sweeps broadly;
`indeed, “it would create liability for every text message
`sent from an iPhone.” Gadelhak, 2020 WL 808270, at
`*6; see also Glasser, 948 F.3d at 1309–10 (same). That
`is not hyperbole. Nearly every iPhone has a feature
`called
`“Do Not Disturb.” When activated,
`it
`automatically texts all incoming callers or a select list
`of them, such as the user’s contacts or favorites list.15
`
`
`13 See, e.g., Jiminez v. Credit One Bank, N.A., 377 F. Supp. 3d
`324 (S.D.N.Y. 2019); Ammons v. Ally Fin., Inc., 2018 WL 3134619
`(M.D. Tenn. June 27, 2018).
`14 Even this point will now lead to litigation. In PDR Network,
`LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019),
`this Court left open the possibility that the Hobbs Act does not
`prohibit courts from assessing the legality of the FCC’s
`interpretations under Chevron.
`15 See Apple, How To Use Do Not Disturb While Driving,
`https://apple.co/2w8nurH; see also Nick Douglas, Lifehacker, Add
`
`
`
`
`
`
`
`15
`
`The Ninth Circuit has held that an indistinguishable
`system—one
`that automatically
`texts security
`warnings when someone accesses an account from a
`new device—qualifies as an ATDS. See Duguid v.
`Facebook, Inc., 926 F.3d 1146, 1151 (9th Cir. 2019); see
`also Marks, 904 F.3d at 1053 (holding that a texting
`platform very similar to group texting qualifies). If
`smartphones count as ATDSs, businesses will struggle
`to find any calling equipment that does not.
`Finally, callers can’t dodge these problems by
`securing consent. “[M]illions of wireless numbers are
`reassigned [from one subscriber to another] each year.”
`ACA Int’l, 885 F.3d at 705. “[T]he caller might initiate
`a phone call (or send a text message) based on a
`mistaken belief that the owner of the receiving
`number has given consent, when in fact the number
`has been reassigned to someone else.” Id. The circuits
`have concluded that the caller is still liable, even if it
`could not have known about the reassignment. See
`Osorio v. State Farm Bank, F.
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