Duguid v. Facebook, Inc.

DEFINING AN ATDS: CONDUCTING A GRAMMATICAL ANALYSIS OF THE TCPA

Facebook claims that conducting a rigid syntax analysis of the TCPA’s statutory language is proper to determine the meaning of an ATDS because when, as here, “the statute’s language is plain,” courts’ sole role “is to enforce it according to its terms.” Brief for Petitioner, Facebook at 22. Facebook claims that two grammar rules—the series-modifier rule and the punctuation canon—dictate that the phrase “using a random number generator” modifies both the verbs “store” and “produce.” Id. at 22. Facebook states that the series-modifier rule dictates that a modifier applies to the entire preceding clause, especially when the modifier directly follows the clause. Id. at 23. Facebook illustrates this rule through the phrase “appellate courts reverse or affirm district court decisions using the precedents at hand.” Id. at 24. Facebook argues that according to the series-modifier rule, the example sentence would mean that appellate courts use precedent both when reversing and when affirming district court decisions because “reverse or affirm district court decisions” is one clause and “using precedents at hand” modifies and directly follows that clause. Id. Indeed, Facebook emphasizes that “no one” would read the sentence to mean that appellate courts use precedent only when affirming district court decisions. Id. Facebook states that the series-modifier rule similarly applies here because the verbs “store” and “produce” are part of one clause as they share a common direct object—“telephone numbers to be called”—and the modifying phrase “using a random or sequential number generator” immediately follows. Id. Thus, relying on the series-modifier rule, Facebook concludes that the phrase “using a random number generator” modifies both “store” and “produce.” Id.

Facebook further argues that the punctuation canon supports Facebook’s interpretation of the TCPA. Id. at 25. According to Facebook, the punctuation canon states that when a “qualifying phrase is separated from its antecedents by a comma, the qualifying phrase applies to all antecedents.” Id. Facebook states that the qualifying phrase “using a random or sequential number generator” is separated by a comma from its antecedents “to store or to produce telephone numbers to be called.” Id. Thus, argues Facebook, “using a random or sequential number generator” applies to both “store” and “produce” pursuant to the punctuation canon. Id.

Duguid counters that Facebook errs in its overreliance on rigid syntax rules and argues that proper statutory interpretation “is governed not by the rules of syntax but by the sense of the passage.” Brief for Respondent, Noah Duguid at 11 (internal quotations omitted). Duguid claims that two grammar rules—the distributive-phrasing canon and the last-antecedent canon—dictate that “using a random or sequential number generator” only modifies “produce” and not “store.” Id. at 16. Duguid argues that the distributive-phrasing canon states that when a sentence contains several antecedents and several consequents, courts should “read them distributivity and apply the words to the subjects which, by context, they seem most properly to relate.” Id. at 20. Duguid provides the example “men and women are eligible to become members of fraternities and sororities.” Id. The distributive-phrasing canon, explains Duguid, would match “men” with “fraternities” and “women” with “sororities” because of the definitions of the words. Id. Here, Duguid defines “a random or sequential number generator” as a procedure of scrambling current numbers to produce a new number, emphasizing that this is a method of “producing numbers, not means of storing them.” Id. at 13–14. Thus, argues Duguid, according to the distributive-phrasing canon, the phrase “using a random number generator” only modifies “produce” because the phrase is meant to describe only how the numbers are to be produced. Id. at 14.

Duguid further supports his interpretation of the TCPA by citing the last-antecedent canon. Id. at 20. Duguid explains that the last-antecedent canon states that when a statute lists terms or phrases followed by a limiting clause, the clause is to be read as modifying only the noun or phrase it immediately follows. Id. Duguid emphasizes that this rule is particularly applicable when the statute “does not contain items readers are used to seeing listed together or a concluding modifier that readers are accustomed to applying to each of them.” Id. at 21. Duguid contends that the rule particularly applies to the text of the TCPA because “store” and “produce” have unconnected meanings and “using a random or sequential number generator” customarily applies to “produce” but not “store.” Id. Thus, Duguid concludes that the last-antecedent canon dictates that “using a random or sequential number generator” should only apply to “produce” and not “store.” Id.

DEFINING AN ATDS: ANALYZING THE LEGISLATIVE HISTORY OF THE TCPA

Facebook argues that its interpretation of the TCPA comports with the legislative history of the TCPA. Brief for Petitioner at 30. Facebook emphasizes that during the TCPA’s drafting, Congress had different concerns with ATDS technology compared to robocalls. Id. at 31. Facebook claims that Congress created more prohibitions on robocalls because they were considered a “nuisance” and an “invasion of privacy.” Id. In contrast, Facebook states that Congress was more concerned with how ATDS technology could potentially tie up emergency and business lines or impose significant costs on pay-per-minute lines, like cellular phone lines. Id. at 32–33. Facebook claims that Congress narrowly addressed ATDS problems by prohibiting ATDS calls only to emergency lines, certain hospital lines, cellular phone numbers, and business lines. Id. at 34. Facebook emphasizes Congress’s intention to narrowly address ATDS problems by highlighting Congress’s prohibition of robocalls, but not ATDS calls, to residential lines. Id. at 31, 33–34. Thus, Facebook argues that its definition of an ATDS is faithful to Congress’s concerns by preventing devices that actually use random- or sequential-number generators, which could clog important phone lines or impose charges on pay-per-minute lines. Id. at 34. In contrast, contends Facebook, Duguid’s interpretation is overbroad because it would “sweep[] in every single device capable of storing numbers to dial later,” such as cell phones with speed dial, and such a prohibition departs from the fears that prompted Congress to act. Id.

Duguid counters that Congress intended the TCPA to be broadly construed to protect the public from “intrusive nuisance calls.” Brief for Respondent at 28. Duguid claims that the enumerated exception for calls made with express consent by the called party resulted from Congress’s balance of individual privacy rights and legitimate telemarketing practices. Id. According to Duguid, this exception protects consumers by enabling them to avoid intrusive automated calls and only allowing callers to use an ATDS for recipients with whom the callers have a valid business relationship. Id. at 28–29. Duguid claims the express consent exception is proof that Congress presumed that “absent consent, automatically dialed calls are a nuisance and an invasion of privacy, regardless of the type of call.” Id. at 29. In addition, Duguid cites a House Committee Report that raised concerns about telemarketing use of automatically dialed numbers from a stored database of current and prospective clients. Id. at 34. Further, Duguid emphasizes that the report was increasingly concerned with the frequency of automated calling because of the creation of telephone number databanks to be sold to telemarketers. Id. at 34–35. Countering Facebook’s assertion, Duguid claims that Congress was not merely worried about a system that could generate random numbers to be called but was worried about “all systems capable of storing numbers and dialing them automatically.” Id. at 37. Thus, Duguid argues that his broad interpretation of the TCPA comports with Congress’s intent to reduce the frequency of unsolicited and intrusive calls. Id.