We’ve been covering the Telephone Consumer Protection Act (TCPA) extensively on this blog, and cannabis TCPA litigation in particular.

• Cannabis Litigation: TCPA Claims
• TCPA Claims: Will the Supreme Court Come to the Rescue?
• Curaleaf Meets the TCPA
• Prepare Your Cannabis Business for the TCPA
• Amy Coney Barrett’s Thoughts on the TCPA

Last week, the Supreme Court heard oral arguments in Facebook, Inc. v. Duguid – perhaps the most impactful case in the TCPA space today. I first wrote about Facebook in this post, where I explained that the Supreme Court had to decide whether the definition of an ATDS “encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” The importance of Facebook is this: in situations where the plaintiff only asserts that the defendant made phone calls or sent texts from lists of customer data, rather than through randomly generated numbers, a ruling for Facebook could completely gut the value of those claims.

Counsel for Facebook argued Duguid’s interpretation was so broad it would cover any call or message made by mobile phones and created “a statute of impossible breadth.” He argued the ban only applies to (now largely obsolete and rarely used) dialing systems that generate random or sequential phone numbers. Other notable corporations such as CVS, Home Depot, Quicken Loans, and United HealthCare all submitted briefs supporting Facebook’s position.

Counsel for Duguid argued Congress enacted the TCPA to respond to a flood of consumer complaints and intended to cover any use of stored numbers to make automatic calls. He argued Facebook’s proposed interpretation “would read the [TCPA] into oblivion.”

Overall, every justice made at least one remark that suggested they were frustrated and/or struggling with making sense of the ambiguous statute that was enacted long before Facebook existed, or mobile phones were widely utilized. Ultimately, several justices seemed to suggest they agreed with Facebook and thought the TCPA did not apply to calls or texts sent from lists of customer data. Notably:

• Justice Stephen Breyer told Facebook’s counsel he had “a pretty strong case on the consequences and purposes” of the law.
• Justice Clarence Thomas asked why “text messages” were even covered by the TCPA, given that the statute’s language only regulates calls and later called the statute an “ill fit” for current technology. He also asked, “Don’t you think it’s rather odd that we are applying a statute that’s almost anachronistic if not vestigial to a modern technology like Facebook and instant messaging, etc.?”
• Justice Sonia Sotomayor commented Duguid’s interpretation would put mobile-phone users at risk of being sued: “If we rule your way, the logical consequence is that every cell phone owner would be subject to the harsh criminal and civil penalties of the TCPA.” She asked, “Could you give me a reason, other than that it hasn’t happened yet, for why Congress would have intended that?” She was unimpressed with Duguid’s counsel’s response.
• Justice Elena Kagan stuck to arguing the grammar of the statute with Duguid’s counsel (who literally wrote the book on statutory interpretation with the late Justice Antonin Scalia), but made clear she was not agreeing with his interpretation. She asked him to acknowledge that the reading he advocated for “is in fact ungrammatical.”
• Justice Amy Coney Barrett specifically asked about the call-forwarding function and other automated functions that modern cellphones are equipped with. Despite a somewhat unproductive dialogue, we already have a good idea of what she is thinking, which I wrote about in this post.

Much of the hearing focused on very technical, very dry arguments regarding the grammar of the statute, but the Supreme Court did take care to discuss the practical implications of their ruling. Chief Justice Roberts especially noted the “sense” of the provision was more important than its syntax. The Court is expected to issue its ruling by Spring 2021 – and like many other consumers and businesses, we’ll be eagerly waiting to read it and report back.

The Supreme Court Hears Oral Arguments in TCPA Showdown on Harris Bricken.