Tuesday, October 27, 2020
Final Friday, numerous elected officers and consumer-protection teams filed amicus briefs urging the Supreme Courtroom to undertake the expansive interpretation of the ATDS definition for which Plaintiff Noah Duguid had advocated in a short he filed the week earlier than. The current briefs and different filings within the case may be discovered right here.
The Fb case arises from a security-alert textual content message that was despatched to a person who had not consented to automated calls, and in the end presents the Courtroom with the crucial query of what’s and isn’t an ATDS. (Recall that the FCC has mentioned, and courts have both held or assumed, that textual content messages ought to be deemed “calls” for functions of the TCPA.)
Most of the amicus briefs argue that Congress was conscious in 1991—the yr it enacted the TCPA—that telemarketers had been making elevated use of list-based dialing applied sciences and didn’t rely completely upon quantity mills. It follows from that, they are saying, that Congress would have needed to control each sorts of dialing. “By together with the ‘retailer’ prong” within the definition, a number of Senators counsel, “Congress ensured that it didn’t exclude the listing based mostly dialing methods that . . . at the least thirty to forty p.c of telemarketers had been utilizing on the time of enactment.” Temporary of Members of Congress at 12 (emphasis in unique). Equally, the Attorneys Common of 37 States argue that Congress should have meant to develop upon present state regulation, which by 1991 principally prohibited list-based dialers. See Temporary of Attorneys Common at 17-18. “It’s due to this fact implausible,” they conclude, “that Congress . . . would have adopted an autodialer definition a lot extra circumscribed than the definitions state legal guidelines had been utilizing on the time.” Id. at 19.
A number of of the briefs additionally argue that limiting the statute to random or sequential numbers would render considered one of its core exceptions—i.e., the exception for prior specific consent—superfluous. For instance, the Nationwide Client Legislation Middle argues that Fb’s studying renders that exception “basically meaningless.” See Temporary of NCLC at 20. In its view, there could be no want for such an exception if the statute didn’t apply to saved numbers (i.e., lists of numbers for which the caller has consent) within the first place.
Lastly, a number of of the briefs warn that limiting the statute’s scope would additionally restrict shoppers’ protections from undesirable calls and texts. See Temporary of Members of Congress at 18 (“[J]ust because the variety of undesirable calls continues to develop regardless of the existence and enforcement of the TCPA, within the absence of the safeguards offered by the TCPA, the variety of undesirable calls would develop exponentially . . . .”); see additionally Temporary of Digital Privateness Data Middle at 26 (“The autodialer ban shouldn’t be interpreted in a means that permits mass dialing with out person consent at a time when unauthorized assortment and use of non-public information has develop into such a widespread downside.”).
Fb, Inc. v. Duguid is about for oral argument on December eighth. We will likely be monitoring the continuing carefully and can report on additional developments as they come up.
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