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Case submitted — stay tuned for more coverage from TCPWorld!
Clement: CONSTITUTIONAL AVOIDANCE!! I wish this had been fleshed out more.
Clement Rebuttal: It isn’t impossible to use a random or sequential number generator to store numbers, because it can be used as part of the storage process.
Garner closing: Under Petitioner’s rule, you could download the entire phone book and call it, and it wouldn’t be considered an ATDS. Brings to mind a certain Simpson’s clip The Czar likes to use.
J Barrett: Does an auto-reply function count as human intervention? Garner says no. The clean brightline test is consent. Doesn’t really answer the question.
Garner — programming a phone is not considered human intervention.
J Kavanaugh points out that the ATDS protection seems to apply to something other than privacy, because it does not apply to calls to residences, unlike prerecorded messages.
J Kavanaugh: Says even if Garner loses, then artificial or prerecorded bans survive. Makes the parade of horribles from Duguid less powerful.
J Gorsuch: On what basis is the sentence grammatical? It’s so awkward you’d rewrite if it were given to you. Garner is struggling to use just the words of the statute to reach his meaning. Gorsuch pushes back on needing to add “human intervention” to the statute.
Kagan — your argument “considerably cleaned up the statute” and made it something it’s not.
J Kagan: Would you acknowledge that the reading you’re asking us to adopt is ungrammatical? Garner — it’s an unusual sentence, but reading not ungrammatical.
J Sotomayor: Is there a reason for why congress would have intended for cell phone users other than “it hasn’t happened yet”? Garner: Art III judges can deal with frivolous claims, then makes an odd argument about ropes and kitchen knives being deadly weapons. Kagan then mentions automatic dialing and zoon issues. Garner says SCOTUS could also disclaim ordinary uses of cell phones in the opinion.
J Alito: Calabrese argued that courts should have the power to declare statutes obsolete. If we don’t have that power, do we have to ignore the parade of horribles that happens with smartphones and social media? Call forwarding was widely available though, and poses problems — would any call forwarding device be covered? Garner — no. It would have to be altered significantly to become an autodialer, because human intervention makes it not automatic.
J Breyer: Has the definition actually gotten to broad, and need to be narrowed, since tech developed in a way that ordinary devices can dial from a stored list automatically? Garner — Petitioner’s reading would contract the statute. Breyer seems to be saying that the statute may need to be narrowed, even if simply storing numbers — but not generating them — was the original meaning of the statute. Interesting idea not many have been raised.
J Breyer: Your reading means you can’t use an automatic system that stores numbers. Were there a lot of systems that could do this in 1991? Garner says there were databases of numbers at the time.
J Thomas: Most people would have no idea today what technology was in 1991, when caller ID was cutting edge, few people had cell phones, and people had pagers. Is it odd that we are applying a vestigial statute to modern tech like instant messaging? Sense of futility? Garner: Average American is very familiar with robocalls, and doesn’t care whether they were randomly generated or sold. Thomas — that makes my point, because it doesn’t have to be randomly generated anymore. BINGO!
CJ Roberts; most people’s first-blush reading would be that the Petitioner’s reading is correct. Garner responds by saying that view ignores the actual words and order used in the phrasing.
CJ Roberts: We are trying to figure out ordinary usage for speakers of English, right? Garner points out that an ordinary speaker would be beffudled by legal language.
Garner claims that Petitioner’s interpretation would effectively kill the statute, because no devices would meet the definition.
And we’re way beyond my grammatical knowledge less than a minute in. Time to sit in the back of class and do a crossroad puzzle (kidding).
Bryan Garner for Petitioners up now.: All manner of interpretation lead to the same result.
J Barrett: Why would anyone think Chevron Deference applies, when we have two conflicting definitions and have to choose the best one? Government — Court has often asked if the statute is ambiguous, but then claims that there is not an outstanding agency interpretation. Key Point — this has to mean ACA International overturned the 2003 and 2008 FCC Orders.
J Kavanaugh — do you think they meant “store AND produce” instead of “store OR produce” and made a mistake? Gov’t — no.
Government points out the significant differences between creating numbers randomly and calling a set list of numbers in random order.
J Gorsuch: Argument depends on evidence that devices existed in 1991 that used random or sequential generators to store, but not produce, numbers. Goes back to the reading that random or sequential generators modify “calling,” not creating numbers. Government goes back to generating numbers to be stored, but not immediately dialed.
J Kagan: Goes to state statutes — why would congress have wanted to depart from all of them? The government correctly points out that Congress used more restrictive tech, but also didn’t limit its approach to prerecorded messages.
Sotomayor: Could a lawsuit against smartphone users actually prevail? The answer is actually yes — a smartphone can be programmed to dial automatically from a list of numbers. Many apps and tech providers offer this service.
Government: Says “produce” means to bring forth or offer up, not create. Odd argument for the government’s position.
J Alito: Goes back to his question, don’t you need to show that a random or sequential number generator was used to store, but not to produce, numbers? This is the most difficult question to answer.
J Thomas: Ill fit between this 1991 statute and modern technology (talks about difference in cell phones, no more car phones, etc). At what point do we simply say that the statute is a gross fit for current technology? Government — in one respect that may be true, since the technology it bans is of limited use. Not sure where Thomas is headed with this line.
CJ Roberts: Goes to the elephant in the room — if this is a plain meaning case, then there is not much room for FCC rulemaking, right? Government responds that there is not a lot of room for a contrary interpretation (ie random or sequential number generator required)
Government goes first. Argues that the most natural reading of the statute is to limit the definition of an ATDS to random or sequential number generator.
That’s it for the Petitioner. Very grammar-heavy argument. Now time for Duguid.
J Gorsuch: Would it make any difference in the real world if random or sequential modified calling instead of producing numbers? Clement says not much of a real world difference, but goes back to describing a process, not a device.
J Sotomayor: Is it congress’s job, not the Court, to update the statute? Yes, but the problem with Duguid’s interpretation isn’t just with smartphones.
Clement falls back on the fact that a a device could call numbers immediately, or use them to store them.
J Alito: People interpret sentences by asking “what makes sense” before getting to archane rules of grammar. Asks what sense it makes to mention storing in connection with a random or sequential number generator. Says unless you can explain how the random or sequential generator was used in the “storing,” “you have a problem.”
J Breyer: Goes straight to the “dial automatically from a cell phone” hypothetical. Uses it as a backdoor way to say focus on the consequences and purposes, not just text. Breyer then acknowledges this is a powerful argument.
Thomas — is a number generator a “device” or a “process”? Clement says that it is a process and not a device. That could be a problematic concession.
Justice Thomas speaks! He asks why a text message is considered a call. Clement uses it to say courts have “updated” the statute and says limiting the statute to voice calls would be an alternative to providing relief.
CJ Roberts asks why the Court should look to the “sense of the statute” rather than technical rules of grammar. Clement responds by going back to the original purpose of the statute, not “modern ills.”
Paul Clement leads off for Facebook and goes straight to basic rules of grammar.
Here we go — Court is in session!
This is it folks, the big day. The Supreme Court is finally poised to tackle the circuit split that has plagued TCPAWorld for years and weigh in on the definition of the ATDS. In this post, I’ll be offering real time coverage of the argument as it happens!
T-minus 10 minutes.