Supreme Court’s pro-Facebook ruling could unleash “flood” of robocalls | Ars Technica

When autodialers aren't autodialers —

Robocall systems aren't "autodialers" if they don't generate random numbers.

Jon Brodkin - Apr 1, 2021 8:29 pm UTC

A Supreme Court ruling today in favor of Facebook limits the reach of a 1991 US law that bans certain kinds of robocalls and texts. The court found that the anti-robocall law only applies to systems that have the ability to generate random or sequential phone numbers. Systems that lack that capability are thus not considered autodialers under the law, even if they can store numbers and send calls and texts automatically.

Advocates say the ruling will make it harder to block automated calls and texts, potentially unleashing a "flood" of new robocalls.

The ruling "nullifies one of the most important protections against unwanted robocalls: the Telephone Consumer Protection Act's (TCPA) prohibition against autodialed calls and texts to cellphones without the called party's consent," said the National Consumer Law Center (NCLC), which had filed a brief in the case.

"Companies will use autodialers that are not covered by the Supreme Court's narrow definition to flood our cellphones with even more unwanted robocalls and automated texts," said Margot Saunders, the group's senior counsel. The court ruling "interpreted the statute's definition of autodialer so narrowly that it applies to few or none of the autodialers in use today," the NCLC also said.

Facebook system not an autodialer

The Facebook case was decided over a question of grammar, as the court had to decide exactly what Congress meant in a key section of the TCPA. The law imposes restrictions on calls made with an "automatic telephone dialing system" and defines that term as "equipment which 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."

What that sentence means was at the heart of the case that Noah Duguid filed against Facebook. Today's court decision recounted how the case began:

In 2014, respondent Noah Duguid received several login-notification text messages from Facebook, alerting him that someone had attempted to access the Facebook account associated with his phone number from an unknown browser. But Duguid has never had a Facebook account and never gave Facebook his phone number. Unable to stop the notifications, Duguid brought a putative class action against Facebook. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages to those numbers each time the associated account was accessed by an unrecognized device or web browser.

Facebook countered "that Duguid failed to allege that Facebook used an autodialer because he did not claim Facebook sent text messages to numbers that were randomly or sequentially generated. Rather, Facebook argued, Duguid alleged that Facebook sent targeted, individualized texts to numbers linked to specific accounts," today's ruling said.

In 2017, the US District Court for the Northern District of California agreed with Facebook and dismissed Duguid's case. But the US Court of Appeals for the 9th Circuit reversed that ruling, holding that a system can be an autodialer even if it doesn't use a random or sequential generator to store numbers, as long as it has the ability to "store numbers to be called" and "to dial such numbers automatically."

The Supreme Court decided to hear the case, noting that another circuit appeals court had ruled differently than the 9th Circuit, creating a conflict among the courts of appeals over whether an autodialer must be able to generate random or sequential phone numbers. Today, the Supreme Court reversed the 9th Circuit judgment.

The opinion for the court written by Justice Sonia Sotomayor said:

The question before the Court is whether that definition encompasses equipment that can "store" and dial telephone numbers, even if the device does not "us[e] a random or sequential number generator." It does not. To qualify as an "automatic telephone dialing system," a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.

Facebook's notification system is not an autodialer because it "neither stores nor produces numbers 'using a random or sequential number generator,'" the court found. All nine justices agreed with the ruling, though Justice Samuel Alito filed an opinion questioning some of the court's reasoning while concurring in the judgment.

Justice explains grammar rules

Sotomayor's opinion explained the question of grammar upon which the case turned:

We begin with the text. Congress defined an autodialer in terms of what it must do ("store or produce telephone numbers to be called") and how it must do it ("using a random or sequential number generator"). The definition uses a familiar structure: a list of verbs followed by a modifying clause. Under conventional rules of grammar, "[w]hen there is a straightforward, parallel construction that involves all 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 interpretative rule, usually referred to as the "series-qualifier canon." This canon generally reflects the most natural reading of a sentence. Imagine if a teacher announced that "students must not complete or check any homework to be turned in for a grade, using online homework-help websites." It would be strange to read that rule as prohibiting students from completing homework altogether, with or without online support.

With the robocall law, "the series-qualifier canon recommends qualifying both antecedent verbs, 'store' and 'produce,' with the phrase 'using a random or sequential number generator,'" Sotomayor wrote. This grammatical interpretation is "the most natural construction" and is supported by other text in the law, the justices found.

"The statutory context confirms that the TCPA's autodialer definition excludes equipment that does not use a random or sequential number generator," the opinion said. "Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at 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 telephone numbers."

The court also said, "It would make little sense... to classify as autodialers all equipment with the capacity to store and dial telephone numbers, including virtually all modern cell phones."

Congress might act as ruling sparks outrage

US Sen. Edward Markey (D-Mass.), one of the TCPA's authors in 1991, and Rep. Anna Eshoo (D-Calif.) issued a joint statement calling the ruling "disastrous."

"Today, the Supreme Court tossed aside years of precedent, clear legislative history, and essential consumer protection to issue a ruling that is disastrous for everyone who has a mobile phone in the United States," the lawmakers said. "It was clear when the TCPA was introduced that Congress wanted to ban dialing from a database. By narrowing the scope of the TCPA, the court is allowing companies the ability to assault the public with a non-stop wave of unwanted calls and texts, around the clock."

Markey and Eshoo said they "plan to soon introduce legislation to amend the TCPA, fix the court's error, and protect consumers."

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