Government laws and regulations often have to be adapted to meet the challenges of evolving technology. Sometimes they fail to respond quickly enough. Skeptics regularly cite this “pacing problem” as a reason for letting technology companies manage themselves.
But sometimes lawmakers get ahead of the curve and put in place a flexible law that allows the rules to evolve to meet changing technology. The 1991 Telephone Consumer Protection Act (TCPA), directed at controlling nuisance telephone calls, was a successful example of flexible, adaptive technology policymaking. By granting rule-making authority to the Federal Trade Commission and the Federal Communications Commission, for instance, it allowed the agencies to put in place the Do Not Call rule in 2003. Dave Barry called this rule “the most popular federal concept since the Elvis stamp” because it allowed people to opt out of receiving telemarketing calls.
The statute also bans the use of autodialers to make calls to cell phones or to send text messages without the prior express consent of the called party. Or at least it used to until April Fools’ Day 2021, when the Supreme Court gutted that provision in a decision that reads like a brief from a telemarketers’ trade association. The decision creates a “pacing problem” that Congress thought it had solved by giving agencies the power to adapt the statute to new conditions. It will force Congress to pass a new law to correct the Court’s mistaken and overly narrow reading of the statute.
The Court’s Narrow Reading of the Statute
An autodialer is defined in the statute as a device with the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Since modern autodialers don’t use number generators at all, the Ninth Circuit Court of Appeals reasonably adapted the statutory definition to the contemporary world by ruling that an autodialer need only have the capacity to “store numbers to be called” and “to dial such numbers automatically.” Senator Ed Markey, the actual author of the 1991 law agreed with that interpretation, saying, “It was clear when the TCPA was introduced that Congress wanted to ban dialing from a database.”
But, in an exercise of arid judicial scholasticism, the Supreme Court ruled that a device is an autodialer only if it uses a random or sequential number generator to store or produce numbers to be called, thereby applying the statute’s autodialer provision to exactly zero real-world devices. It didn’t even attempt to hide the gutting of the statute - noting blandly that if its interpretation meant that the statute applied only to “senescent” technology that was because the statute itself was “senescent.”
The Court’s professed rationale for this narrow reading of the text was an obscure rule of statutory interpretation - look at the placement of the comma, the majority opinion urged. Even Justice Samuel Alito, who nevertheless concurred in the decision, rejected the Court’s strained reasoning as “mechanically applying a set of arcane rules.” Such arbitrary rules of interpretation, which the Court increasingly relies on, derive from the work of the late Justice Antonin Scalia. They have nothing to do with the rules of English grammar, but everything to do with giving the Court a flexible tool to reach whatever conclusions its policy preferences dictate.
Where’s the Technology Assessment?
The Court did engage with today’s technology - but only in the crudest and least nuanced way. Since cell phones have a speed dialing function and store numbers, the Court reasoned, a broad reading of the statute would make every cell phone an autodialer subject to the consent requirements of the statute, which indeed makes very little sense.
But a speed dialer is easily distinguishable from an autodialer because a cell phone user has to select the person to be called and push a button to speed dial it, while an autodialer can dial telephone numbers 24/7 with no human intervention at all. The court brushed aside such a reasonable technological distinction, saying it had no interest in the “difficult line-drawing exercise” of determining how much automation makes a device an automatic dialer.
Moreover, the Court moreover attributed to Congress not an interest in reducing nuisance phone calls, but only the narrowest possible interest in preventing just the abuses arising from calling random or sequential blocks of numbers. Why Congress would deliberately limit itself in this way to the technological realities of 1991 is left to the imagination of the reader.
The Court even provides a roadmap for how to use an automatic dialer to make calls or to send text messages without triggering the TCPA consent requirement. First obtain a “pre-produced” list of cell phone numbers. Then be sure not to use “a random number generator to store numbers to be called later” because storing numbers for later calling using a random generator will make the device an autodialer in the Court’s interpretation of TCPA. Instead, the Court advises, draw numbers from the “pre-produced” cell phone list “for immediate dialing” in whatever fashion you want - the Court has no interest in regulating how the automatic dialing takes places. In this case, the Court says, the device will neither store nor produce the called numbers using a sequential or random number generator, and so will not be an autodialer for TCPA purposes.
The TCPA prohibitions on recorded messages remain intact, and the Do Not Call opt out opportunity is still available, but the danger in the Court’s decision is clear. Unwanted calls are such a pervasive problem today that many people do not answer their cell phones unless they know the person calling. The Court’s decision just made the current miserable situation immeasurably worse. As Margot Saunders with the National Consumers Law Center says, the decision will allow telemarketers to “flood our cellphones with even more unwanted robocalls and automated texts.”
The good news is that Senator Markey and Representative Anna Eshoo plan to introduce legislation soon “to amend the TCPA, fix the court’s error, and protect consumers.” If the experience of Do Not Call is any precedent, we can expect rapid passage of such a popular consumer protection measure.
In responding, Congress needs to make it clear that the enforcing agencies have full authority to update the relevant definitions to adapt to changing technology. At one point, perhaps, the Supreme Court could be relied upon to adapt statutes to evolving technology, but it appears to be lost in sterile scholastic debates about the placement of commas rather than an evaluation of real- world technological issues. Congress should lodge the responsibility to update and clarify the application of old rules in light of evolving technology to expert agencies that understand the business realities and the technologies used in the industries they regulate.
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