Monday, September 7, 2020
I suppose I ought to have seen this coming however I didn’t.
After forcefully battling to maintain the TCPA on the books simply final time period, the U.S. Authorities has weighed in on the brand new Supreme Court docket TCPA ATDS debate–however as an alternative of arguing for an expansive studying of the statute the Authorities is asking the Supreme Court docket to narrowly interpret the statute to solely apply to dialers that randomly or sequentially generate numbers to be known as.
This actually does change every thing.
And no I’m not simply speaking concerning the compelling authorized factors raised within the transient, though I have to say the transient is excellent. The transient reads-to me at least- with rather more persuasive power than the Opening briefs in Barr. The grammatical evaluation of the TCPA’s ATDS definition is elegant and compelling– much better than many of the tortuous I’m-trying-to-explain-something-I-don’t-really-understand arguments you are likely to see in these briefs. And the cut-to-the-chase coverage evaluation is excellent as effectively.
Sure, as with most Supreme Court docket briefs, the Authorities’s place is confidently and straight conveyed and seemingly leaves little room for doubt.
However the potent advocacy within the transient is not the important thing right here– The Authorities has now (lastly) spoken authoritatively on the scope of the TCPA’s present ATDS definition.
After all the battling, all the wrangling, all the advocacy to the FCC–there it’s. A quiet submitting the afternoon earlier than Labor Day that just about everybody missed. The Authorities has now had its say– the TCPA solely applies to random hearth dialers. Nice. Now we all know.
Pack it up of us. We win. Proper?
It isn’t the arguments of the Authorities which can be so important, it’s the truth that the Authorities’s place is that the TCPA is to be narrowly learn and utilized. I imply, that’s every thing proper there. This isn’t like Barr the place the federal government was arguing whether or not the TCPA is constitutional; that is the federal government weighing in on what the TCPA was supposed to cowl. That feels fairly authoritative; identical to an FCC ruling decoding the Act however from a distinct wing of the federal authorities.
And certain, technically, a place assertion taken by the US Authorities made in a advocacy piece to the Supreme Court docket is in all probability not binding (in all probability) do we actually anticipate the Supreme Court docket to disagree?
I imply certain its technically too early to name this one for the great guys, however learn this transient of us– Fb– Authorities Transient. I’m satisfied. And I’ve a really onerous time believing that SCOTUS ignore the Authorities’s place on the supposed slim attain of a federal statute.
So now the true query: with the U.S. Authorities wading into this battle and straight advocating that Congress supposed not more than to manage random-fire dialers how can anybody actually debate the problem additional?
I ponder whether Mr. Duguid himself–and his counsel-might begin to consider merely laying down their weapons at this level. You’re on the unsuitable aspect of this factor guys. The U.S. Authorities has actually spoken on the problem– the TCPA was not designed to do what you thought it was. Settle for it and transfer on.
Let’s focus on coverage to the coverage makers– not SCOTUS. That’s not the place you need to be with this Court docket and you realize it. (Large image guys.) It’s in everybody’s finest curiosity to get this statute cleaned up however that has to start out on the Hill.
Simply concede your factors and foyer Congress to offer you a brand new regulation. The Authorities has now given us readability as to the scope of the present regulation. That’s all anybody needed to start with. Go away it alone and let SCOTUS concentrate on stuff that’s really debatable. This simply isn’t anymore.
So sayeth the Czar.
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