Lawyers Hope SCOTUS Provides Long-Awaited TCPA Clarity

The court will focus on one central question: “Whether the definition of ATDS in the TCPA 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 7th and 11th circuits said a platform must generate phone numbers to be considered an ATDS, and the 2nd and 9th Circuits said a platform can be an ATDS as long it merely stores phone numbers to be called later.

“I was becoming extremely dismayed with the conflicting opinions,” said Becca Wahlquist of Snell & Wilmer, among the lawyers we spoke with in recent days. “We would have all had at least another year of chaotic decisions and really confused judges and arbitrators. … It has been really untenable for a while.” There are cases worth hundreds of millions dollars and no one can agree on the definition of ATDS, she said. There has been a growing “onslaught” of cases filed in the circuits where it's easier for plaintiffs to get a win, Wahlquist said. “If the Supreme Court case hadn’t taken this, there were going to be federal courts … that were going to start doing nothing but TCPA cases,” she said. Wahlquist said current arbitrations, individual actions and class actions involving the question should be stayed pending a Supreme Court decision.

“Thirty years after Congress passed the TCPA, we may finally get a clear, nationwide statement on what constitutes an automatic telephone dialing system,” said Hogan Lovells’ Mark Brennan. "With the 2nd and 9th circuits drawing a clear split with the 7th and 11th circuits on the autodialer definition, it became increasingly clear in recent months that the Supreme Court was going to need to weigh in, especially when the FCC has not resolved the D.C. Circuit [ACA International v. FCC] remand for more than two years." The high court is familiar with parts of the autodialer question based on the briefing in the AAPC case “and the level and intensity of disagreement may have contributed to the court taking up this case,” Brennan said. "The court also seems to recognize that the TCPA is a bit of a mess, and it's no wonder” it has granted cert in three cases in recent years, he said.

“We are cautiously optimistic” given the AAPC decision, which notes “how much Americans hate robocalls,” said National Consumer Law Center Senior Counsel Margot Saunders. There’s a “recognition that the statute needs to be interpreted in light of the purposes for which it was created,” she said. The high court could easily have come up with a constitutional reason to eradicate the statute, but didn’t, Saunders said. “We are hoping that the Supreme Court will do the same thing in its interpretation of the definition,” she said. If industry wins, “most of the robocalls that are plaguing all of us will be unregulated,” she said.

“One of the cornerstones of the entire law is how to define what equipment is covered because that’s the whole way the law works is by prohibiting the use of certain equipment to make calls,” said George Slover, Consumer Reports senior policy counsel. His group supports the broadest possible definition. There’s been “intense skirmishing as technology evolves,” he said. Robocalling “is a lucrative business” and callers are “constantly looking for ways to distinguish what they’re doing from what the law prohibits,” Solver said. “One of the ways to do that is saying the equipment we’re using isn’t covered by this law because we do something a little different.”

"Courts would welcome a reduction in caseloads," said Davis Wright's Ronnie London. USTelecom Senior Vice President-Policy and Advocacy Patrick Halley called this case important, saying it will have significant implications for TCPA cases.

The dispute over the ATDS definition is an incredible driver of litigation "and easily abused," said Faegre Drinker's Michael Daly. SCOTUS could remove uncertainty, he said. He hopes the court rules "as it's written in the statue," that unless the equipment produces random or sequential numbers, it's not an autodialer. Conventional wisdom says the FCC won't rule on the matter now that the Supreme Court has agreed to hear the case, Daly said.

Venable's Daniel Blynn doesn't expect the FCC to weigh in regardless on such a controversial matter during an election year. "TCPA is incredibly popular; no one wants to be responsible for allowing more phone calls and text messages to consumers," he said. He predicted that if the top court adopts an expansive definition of autodialers, "you'll see new equipment designed to be compliant with the new definitions."

The grant of cert in the case “is welcome news to thousands of businesses who use text messaging to communicate with their customers,” said Hall Estill’s Aaron Tifft. Because of the uncertainty surrounding the definition of ATDS, “businesses are unable to ensure their communication policies and procedures meet the federal requirements,” he said: “When one small misstep can trigger catastrophic liability, businesses should not have to guess at the scope of these regulations. We hope a ruling from the Supreme Court will provide the guidance necessary to stem the rising tide of predatory suits brought against the multitudes of businesses trying in good faith to communicate with consumers via text message.”