BREAKING UP VIA ROBOCALL: WILL THE SUPREME COURT'S CONSERVATIVE MAJORITY DISMANTLE PROTECTIONS UNDER THE TCPA?

• Author: Burkard, Caroline M.

1. Introduction

   If the Telephone Consumer Protection Agency ("TCPA") eliminated robocalls in 1991, then why did Americans receive 58.5 billion robocalls in 2019? (1) The answer is simple: in 2015, President Obama wrongfully enacted an Amendment to the TCPA, allowing debt collectors from the federal government, mortgage companies, and student loan providers, to berate their consumers through automatic, prerecorded, and artificial voice messages. (2) Fortunately, in 2020, the Supreme Court severed the 2015 Amendment to the TCPA. (3) The Supreme Court held that by favoring "debt-speech" over "political speech," the 2015 Amendment of the TCPA violated the First Amendment of the United States Constitution. (4)

   Despite the Supreme Court's decision in 2020, the Seventh and Eleventh Circuit Courts permitted companies to slip by these restrictions. (5) These business entities argued that their actions did not fall under the TCPA because their automatic telephone dialing systems ("ATDS") required human contact and did not technically "store" and "produce" numbers. (6) According to the TCPA and the FCC, an ATDS was a machine that had the "capacity" to dial numbers using an automated system. (7) The Seventh and Eleventh Circuits held that because human intervention was necessary, these machines did not qualify as "automatic telephone dialing systems," ("auto-dialers") and thus, should not be liable under the TCPA. (8) Conversely, the Second, Sixth, and Ninth Circuits held that these random number generators should still be liable under the TCPA because they produced and stored phone numbers." (9)

   In 1991, the TCPA eliminated the use of all automatic, artificial, and prerecorded voice calling for a reason. (10) Automated phone calls were aggravating tools that businesses used in order to cut down on their own personal costs. (11) Consequently, individuals were constantly bombarded by these anonymous calls on a daily basis. (12) The TCPA's primary purpose was to protect consumers from automated phone calls, regardless of human contact. (13) With the impending decision of Duguid v. Facebook, many hope that the Supreme Court will not only clarify the definition of an auto-dialer, but will also eliminate robocalls in their entirety. (14) Even though companies attempted to avoid the TCPA by randomly dialing numbers from their customer databases, their actions should still be held liable under the TCPA because these robocalls are an invasion of privacy and meet the prerequisites of an "auto-dialer" under the TCPA. (15)

1. History

   1. The Communications Act of 1934

      In response to a growing number of advertisers contacting consumers through telecommunications without any restrictions, Congress passed the Communications Act of 1934, which created the Federal Communications Commission ("FCC"). (16) For example, prior to the Act, male stock brokers would call residences at all hours in order to give updates on the stock market, and male solicitors would travel door to door in order to sell products. (17) When most men were drafted into the war, the entire in-person system shifted to telemarketing without any official restrictions. (18) Due to these disruptions, the FCC incorporated telephone and telegraph communications into its jurisdiction as well as its already established radio and wire communications. (19) Traditionally, "interstate telegraph companies" had jurisdiction over telephone and telegraph communications. (20) The Communications Act of 1934 transferred jurisdiction from the "interstate telegraph companies" to the FCC. (21) As a result, telephone and telegraph companies had to follow the FCC's rules and regulations. (22)

   2. The Telephone Consumer Protection Act of 1991

      Just as the emerging technology urged Congress to pass the Communications Act of 1934, Congress had to act once again in 1991. (23) The United States experienced a drastic increase in automated phone calls from the late 1930s through the 1980s." (24) In addition to political campaigns utilizing robocalls, magazines and newspapers sold subscriptions and other products, which significantly contributed to an increase in automatic calls. (25) By 1991, the amount of sales generated by telemarketers annually came close to $435 billion." (26) While these businesses did not have to pay for advertising because they relied so heavily on automated phone calls, the public paid the price through blocked phone lines, preventing them from accessing emergency phone lines, such as 911. (27) This was not only an invasion of privacy; it was dangerous. (28)

      To prohibit certain practices that invaded consumer privacy, Congress passed the TCPA to ban particular actions. (29) Congress gave the FCC the sole authority to include exemptions to the TCPA, such as calls made for "non-commercial uses" or non-profit organizations. (30) Under the FCC, telemarketers had to adhere to a new set of guidelines, including only calling during an appropriate window of time, while also following the National Do Not Call Registry guidelines. (31) However, because Congress passed the TCPA as an amendment to the Communications Act of 1934, future legislators saw this as an invitation to add additional amendments. (32)

   3. The FCC's Failed Attempt to Clarify the Language of the TCPA

      In an attempt to keep up with technology and its relevance to the TCPA, the FCC issued several Declaratory Rulings between 2003 and 20 1 5. (33) These Declaratory Rulings were issued to specifically address the rapid growth of cellular phone use and clarify language used in the TCPA. (34) In 2003, the FCC stated that if a piece of equipment did not store numbers as its primary purpose, but still dialed numbers using that same piece of equipment, it could still be considered an ATDS because it had the "capacity" to do so. (35) Additionally, in 2015, the FCC stated that a machine could be considered an ATDS even if it simply had the potential to randomly dial numbers. (36)

      The FCC's explanation that an ATDS had "the capacity to perform auto-dialer functions" confused the courts even more. (37) While the FCC attempted to clarify what an ATDS was under the TCPA in its 2015 order, the D.C. Circuit disregarded it. (38) The D.C. Circuit suggested that with such a broad definition, a smartphone could eventually qualify as an ATDS because it had the "capacity" to "store" and "produce" phone numbers using an auto-dialer. (39) While rejecting the FCC's broad scope, the D.C. Circuit also found the FCC to be inconsistent when prohibiting machines that "only generated random numbers" but also, machines that dialed numbers from a database. (40) Because of this, the D.C. Circuit set aside the FCC's order regarding the definition of an ATDS. (41) As a result, the FCC ceased to have any real authority to enforce the TCPA, leading to even more confusion within the circuit courts. (42)

   4. The 2015 Bipartisan Budget Act

      While the courts struggled to interpret the TCPA's language, President Obama signed the Bipartisan Budget Act, which expanded the type of organizations and business entities that could use automated dialing to contact consumers. (43) For example, mortgage companies, the Federal Government, and student loan servicers could conduct automatic, artificial, and prerecorded voice calls in order to collect debts. (44) The original notion of protecting consumers translated into protecting creditors. (45) As a result, individuals were once again subjected to the annoyances of robocalls. (46) This "debt-exception" was the basis for rightful and continuous litigation in the upcoming years. (47)

   5. Barr v. American Association of Political Consultants, Inc.

      In Barr, the Supreme Court ruled the 2015 Amendment to the TCPA violated the First Amendment because the government infringed upon content-based speech. (48) Though many believed that this decision would clarify the TCPA, the Court only addressed the debt-exception portion. (49) In Barr, nonprofit and political organizations argued that the 2015 Amendment favored "debt collection speech over political and other speech" because the TCPA allowed for debt collectors to use robocalls to contact consumers whereas political and nonprofit organizations were barred from doing so. (50) The Supreme Court precedents enabled the government to place restrictions on speech as long as it was based on the "content" of the expression. (51) In this case, the government allowed for debt collection speech but prohibited political speech. (52)

      The Supreme Court first looked at whether the 2015 Amendment was content-based. (53) After determining that it was content-based, and thus subject to the First Amendment, the Supreme Court then looked to whether it could sever the 2015 Amendment from the 1991 TCPA or, if the entire TCPA had to be dissolved. (54) Fortunately, the Supreme Court ruled that it was possible to preserve the TCPA because it had functioned for over twenty years prior to the 2015 debt-exception amendment. (55)

3. Premise

   While Courts still followed the decision in Barr, which held that automatic calls were banned, the question of what "automatic" meant lingered. (56) As a result, the different interpretation of this term in the TCPA led to a circuit split. (57) The courts still followed the Supreme Court's decision in Barr by agreeing that all automatic phone calls were banned, but the argument still lingered over what "automatic" actually meant. (58)

   1. Equipment That Had the Capacity to "Store" Numbers

      The TCPA prohibited the ability for sequential and random number generators to store numbers. (59) The Circuit Courts argued whether it was possible to store numbers that were already stored in a customer database. (60) Two Circuit Courts determined that it was impossible to accumulate numbers that were already stored in their customer databases. (61) For example, in Gadelhak, the Seventh Circuit determined that AT&T's "Customer Feedback Tool" did not have the capability to "store"...