ALEX ENGLANDER—A multimillion-dollar class action lawsuit and its potential industry-altering effects now depend upon the Supreme Court’s interpretation of the placement of a single comma. The Court is scheduled to hear oral arguments in Facebook, Inc. v. Duguid on December 8, 2020. The case concerns arguably one of the most annoying modern-day nuisances: robocalling and robotexting.
Noah Duguid and his putative class allege that Facebook sends tens of thousands of unsolicited automated text messages in violation of the Telephone and Consumer Protection Act of 1991, which is codified as 42 U.S.C. § 207 (the “TCPA”). Specifically, Duguid complained that he received text messages from Facebook multiple times a day concerning login activity on his account; however, Duguid had never created a Facebook account. After Facebook ignored his numerous attempts to stop the text messages, Duguid filed a class action lawsuit on behalf of himself and all others who have either received unsolicited text messages or who had, after opting out, continued to receive text messages from Facebook.
The TCPA prohibits any person from making a call to a landline or cell phone using an automatic telephone dialing system (“ATDS”), except in the event of an emergency or with prior consent. The Federal Communications Commission construes the term “call” to include text messaging. However, this case hinges upon a single question: What exactly comprises an automatic telephone dialing system?
The confusion derives from an ambiguously placed comma within the statute. The TCPA defines an ATDS as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and which can dial such numbers.
Duguid argues in his opposition brief that the phrase “using a random or sequential number generator” applies only to the word “produce” and not to the word “store.” He further argues that the application of “using a random or sequential number generator” on the verb “to store” creates an incoherent textual argument as number generators produce numbers, but they do not store numbers. Such an interpretation would render the words “store or” surplusage, which would violate the principle that courts should not adopt an interpretation of a congressional enactment that renders another portion of that same law superfluous. Under Duguid’s interpretation, an ATDS could be any equipment with the capacity to store and dial numbers, such as a modern smartphone. Thus, Duguid would only need to prove that Facebook used equipment that stored his phone number and messaged him in an unsolicited manner. As a preview of what is to come in oral arguments, Bryan Garner, editor of Black’s Law Dictionary and one of the top legal lexicographers in the country, recently joined Duguid’s legal team.
Facebook and numerous amici, including Home Depot, Inc. and the Chamber of Commerce of the United States, disagree. Facebook contends that Duguid and the Ninth Circuit’s interpretation is counter-textual and expansive. Its argument relies on the principle that courts should not construe a statute in a way that negates its plain text, even if the statute is awkward as written. Facebook’s interpretation is as follows: An ATDS must be able to store or produce numbers to be called, and those functions must be discharged through the use of a random or sequential number generator. Facebook bases this interpretation off of the “punctuation canon,” which states that punctuation is a permissible indicator of meaning. As applied here, Facebook argues that a qualifying phrase separated from its antecedents by a comma would apply the qualifying phrase to each and every antecedent. Under this interpretation, a TCPA violation would only occur if a sender uses a random or sequential number generator to send its message, which Facebook did not do in this case.
If the Supreme Court sides with Duguid, companies will likely need to take a closer look at their automated operations. Specifically, under a Duguid interpretation, any unsolicited automated call or text message, whether unintentional or deliberate, would constitute a violation under the TCPA. Because each violation permits a statutory recovery of $500 (or up to $1,500 if the violation is found to be willful), companies would need to establish tighter-knit protocols to confirm that the telephone numbers on file belong to their users. Further, they will need to regularly ensure that their automated opt-out features are functioning, especially if an automated “robot” is the only process in place between an end user and an opt-out function.
Regardless of the ultimate outcome, this case is an excellent reminder of the importance of reviewing every character in a legal document. Even a single ambiguously placed comma could result in litigation before the Supreme Court!