tv Facebook Inc. v. Duguid Oral Argument CSPAN December 11, 2020 5:53am-7:17am EST
>> and to emergency and cellular lines but not to residentl lines. under well-established rules oftatutory construction the entire phrase to be called sequential number gerator that has a statue of impossible between the definition and the targeted mission under ordinary rules of grammar that modifier not just a second and so those of the disparate impact
reinforces that conclusion first it is set off by that, dified by the verb and second a direct object the direct object of those telephone numbers to be called in those were significant judicial that. and then to the residential land line. from those in 1991. and with those multiple business lines that were in with those and if they were really aiming at those calls from devices the failure to
protect the hope would be inexplicable. >> mr. clement your friend on the other side says we should look at the passage and not to the rules of syntax. i know you were dispute about the passage but as a general matter he is right? the drafters here were not following the redondo singular or to diagram a sentence so why should we focus on syntax to the extent i think both parties do? >> i think because the other way lies madness with all due respect. one deviates from the rules of ordinary grammar and statutory construction that essentially to empower the judiciary to
rewrite e statutes the respect to my friends on the other side that's at the invite you to do here. i think congress had a very specific problem in this position and it was successful to eradicate and my friend would like to use the sense of the statute to reap us the mission to address modern ill. >> it's clear they didn't have in mind the modern ills that would lead to a disaster of his interpretation were not opted is that something we should consir at all? >> i don't think it's something you should really consider and it gives very little credence to cgress his own ability to address these in an ongoing way and congress passed another statute to direct the problem telemarketing calls and what
it did was to create a process where the technology we use with their home phones and cellular phones it is self please call. >> thank you counsel justice thomas. >> thank you mr. chief justice. >> thank you mr. chief justice. this isn't central to your case, but i am interested in why a text message is considered a call under the t cpa? >> that is an excellent question justice thomas and i think it is another way in which the courts have essentially updated the statute to keep up with the times it's not at all clear a statue directed not just our calls but also in particular artificial or the recorded voice calls is not even a text at all and if one word hold to
voice calls and not the text that would be an alternative route for pulling in her favor in this case the other thing i would point to there is the amicus brief to the washington legal foundation that has reference this specifically and what they point out in more recent statutes when congress addresses call or a text they do so to get a real evidence to talk about the text as a call but the text that is received. >> when we talk about a number generator under the t cpa, are we talking about a device or process? perhaps it makes more sense of it is a device. what is your thought on that
quick. >> justice thomas, likely bed as the process as a part of equipment. so maybe you have in mind a computer program that has a number as the numr generator than dials the number. >> justice breyer. >> my only question in light of your answer to the chief justice i think if you say your friends definition that would be unlawful for a person to use a cell phone. like an emergency hospital number to make a call to the emergency line of the hospital? is that right quick.
>> that's right justice breyer. >> are you telling the chief justice that is irrelevant? >> no i didn't mean to say that is irrelevant. >> what you say that's really important? it does have a very peculiar or weird result it does have something to do with the interpretation? >> absolutely. i was st responding to the idea rather than results produced by the wordand their syntax would restart creeping into the city says which that is in you. circles by don't think that's featured in this court's cases. >> i think the general point for all general purposes they are all relevant and in this
case in my opinion you have a a strong case on the consuences. >> obviously justice breyer there is a range of views on this court how you look beyond the text of the consequences i think ur text and consequences played part of that of the past. >> justice alito. >> sorry. the statutory phrase we have to interpret in this phrase has a structure that is fairly common to activities to produce telephone numbers followed by a modifying phrase do you think that number generator those who hear them
or read them understand what they mean without looking at a treatise of interpretation but they do that by asking what makes sense. i give a lot of examples but i have very little time for questioning. they ask about the sense of it they get to the arcane stuff. so does it make any sense with a list of telephone numbers using a random or sequential number generator? the best answer i can find in the brief is that ere were systems that produced a list of numbers using such a generator and then stored them but unless you can explain how the generator was usedn the process of storing the numbers, think we have a probleroblem.
>> justice alito, two quick things i do think readers have the advantage over listeners because they can look at the actuation and they do think it is important but the heart of your question, don't think there is anything nonsensical or redundant about talking about using a random number generator to store numbers it's no different in with the phase a t of people would use to describe the provision of dialing of numbers using random number generator. in both i think they are sensible it just means you're using the number generator. not use the actual dialing or storing the process to store telephone numbers or the process of dialing numbers to be called to if you understand
the terms in that way it is. accents to get the idea congress was trying to prohibit the use of the number generator for immediate dialing to be produced or captured. >> mr. clement with the other side once it would cover too many devices. is the issue with the interpretation more with the t cpa being outdated if it was past 30 years ago self posted not even exist for today is to references pagers. but you are right to know today almost all have the ability to store for numbers of congress wanted to do was stop call that was automatic and that's what it would
accomplish would it be out on - - their joto bring it in line with the times? >> justice certainly i deafly think it's congresses job to update the statute now think it only materializes with the modern smart phone. the basic problem is and technology people in 1991 like speed dialing or call forwarding the capacity to store the number of the fcc confronted that in 1992 rule that says don't worry about speed dialing for call forwarding does not cover the is covered because it doesn't use a sequential number generator so the entire history is been read way too broadly and since the very beginning the sensible way to avoid that outcome is to use a
sequential number generator to modify to store and produce. >> i would like to give you a hypothetical along the lines of justice alito it is illegal to stab or shoot another person using a firearm. what i be covered if i stab somebody with a knife? >> i say the word is to use the bayonet but i think that gets to use the sense that you provided in the supreme court decision in the health case there are certain combinations of words where the mind would also the combination of the two words and they are i is very clear dealing with a bayonet using stabbing somebody with a firearm
without "-left-double-quote stick impossibility using equipment to store telephone numbers using a sequential number generator the statutes that were ssed before the t cpa they use a bunch of different formulations for a number of them did address the technology and random sequential number generator. that is a real problem particularly you think about sequential number generation generating thousands of numbers you he to store them someplace in the fact they are using the equipment to store the numbers to create the distinct risk to emergency lines and cellular phones and peter lines. >> can you comment on what you're reading creates? >> i don't think it has a surplus problem so on our side
i don't think there is because if i talabout using a power generator to storer's electricity i don't thank you read that to be completely redundant i don't care if you use the electricity now or later so it's not purely redundant. >> justice gorsuch. >> what you said in the opinion the first potential reading. but the problem that it generates that everybody has recognize that it is awkward to speak of equipment storing anything using a random number generator. as justice kagan pointed out one potential response might be what judge barrett called
the potential reading to say that the phrase using a sequential model generator modifies the object rather than the verb so storing the numbers to be called using a random number generator. of course the problem is the. i feel that. unit raise the fourth argument as a potential i'm not sure we need to put out what it make any difference to you and your clients in any real way with the first alternative that could be a possibility? >> justice gorsuch i think we would be available equally under the fourth alternative and as i stand her today i cannot think of a practical difference between the two formulating our arguments it's hard to ignore the, the other
reason to be candid if you don't think there's anything terribly anomalous about calling using a sequential number generator that i don't know why we think they're so anomalous aut storing numbers using a sequential number generator. but context is not the generato itself the does the calling of the storage but in those cases the generator is part of the storage process or the calling process. >> very helpful, thank you. >> justice kavanaugh, good morning mr. clement i want to touch on what congress was getting at in 1991 just to make sure i understand the structure of the statute. your point about calls to the home artificial or recorded
limited. why didn't congress also prohibit live telemarketi calls to the home do you think? >> i think it's clear from the legislative history and the findings the reason they didn't in the home was out of respect the first amendment. >> when you get to the other category of calls, congress again debits the artificial or the corded voice calls also live caller calls using the atd s so what was congress getting at with those calls in my right in thinking those are live caller calls covered by
the atd s pmission? >> there is some debate about that if you look at the legislative history there is some influence the reason and they targeted those specialized lines prohibiting in addition to the recorded voice calls when they didn't do the same for the residential land lines precisely because those were the lines particularly probable to number generation technology. >> those recorded calls would have already been pivoted to number generation technology. >> those recorded calls would have already been pivoted so that would have been using the atd s for the live caller call would only pay thenly thing
separate. >> i'm not positive that's the way it is structured because it only covers the recorded voice calls with the business line and emergency lin those are prohibited. >> thank you counsel. just disparate. >> will want artificial call. >> thank you consult - - counsel. >> mr. clement the lower court said adopted your opponents interpretation that says liability isn't attached of the call is made for emergency purposes or a prior consent. they have pointed out under your interpretation that prior
express consent doesn't work for the atd s i'm looking at the emergency purposes except into liability i wonder how the atd s or the artificial recorded voice device and make a call for emergency purposes? >> just disparate you can imagine either one making a call it was a medical emergency or an dividual at large in the community they were using this technology to provide a warning message it could be recorded to everybody in the jurisdiction. >> so you think it would? and wondering in an abundance of caution you can imagine why congress would not want any call for emergency purposes or with the express consent to give rise to liability but it may not mean there is a wise applicability for either one of those including emergency
services that would deprive the objection that your interpretation renders prior consent but not great utility. >> i think it's a narrow band of calls but those conceivably made with the atd s so that exception does have some force but if you read it as a whole it's clear they are mostly in there for the day recorded artificial voice calls there is no exception with the one provision only for the atd s calls. >> one minute to wrap up. >> with respondent i would like to emphasize power reading both conjunctive firms are modified support have the specialized conducts of scope by contrast to capture the wide swath to produce using the number gerator only has
a narrow band of specialized conduct it is not been on the wall next to the mouse for everything under the sun or a specialized practice. that's theecond problem congress which permit every annoying call that can store and i'll members of not have left it unprotected and 91 there were only 7 million cell phones now there's one representative member of congressas a landline they wanted to address something better congress decision to leave the residential land lines unprotected would be inexplicable. >> thank you mr. counsel. >> mr. chief justice may please the court this case can and should begin with the statutory text under ordinary rules of grammar and construction the phrase using a random number sequential generator is best way to modify to store and produce
now the court to discard those rules on the anti- grammatical sense it cannot showhe contextual probability of a grammatical meaning - - meeting with the approach also reported consequences a governments reading that has a lited role the definition plays both today and from the perspective of the 1991 congress regardless of how the core votes the world continually to prohibit verbal calls the fact in 1991 definition has universal devices no longer in use that has the court to adopt other than the most natural reading of the tex text. >> you began by saying this case because is the statutory text is a the plain meaning case? >> we think the interpretation offered here is by far the
contrary interpretation. >> that was a question. not a statement. how do you react to the notion this will have disastrous consequences given in technology that has developed since congress passed the senate they should into on - - enter into consideration? >> i agree with my friend that should not be drive the course analysis. so as someone has suggested that narrow role they play in the statutory scheme that it only implicates the automated call restriction. >> thank you mr. ellis. justice thomas. >> thank you so to the point
of the statute from 1991 and current technology with the cell phones 1991 they were the size of a loaf of bread and not widespread use people had car phones instead the industry has changed the technology is far beyond anything we could have conceived of 1991. at what point do we simply sa say, i understand the statutory construction and what we are attempting to do with the statute but at what point do the say it is ill fit for current technology?
>> and one respect that may be true the best reading doesn't apply to a great deal of technology that is in use today that is evidenced and not the way to update the text. on the flipside as you suggest that the potential that the smartphones could be made unlawful i think is urging for the courts. >> for what i am asking is sometimes we use we make this great effort to interpre the statute intended for the use this one just the user in which we are operating. at what point do we simply say that quick.
>> the courts approach should not change the right approaches to still engage with how it is written eventually that up to congress. >> justice prior. >> one --dash justice prior. >> i pass. >> i have two questions it doesn't make any sense to talk about with the number generator and second, with your interpretation don't you have to show that there are reward systems refuse such a generator they use it to produce the numbers? otherwise it wouldn't cover storage so if you could cover those two in reverse order i would appreciate it.
>> i would start with the letter. the statute can be read to cover the independent work but i will say i don't think that is a requirement for the court the court has recognized that sometimes it does adopt this approach and that's what they have done here and that it would lead the court to the ordinary rules of grammar or construction. as my friend acknowledged there are two ways to use random a number of sequential generators and in fact if you think about using the statute what that means it is better to create because that will not be in use of those have
those numbers and never existed before and the real world. >> so is a list of numbers but changed about that idea? >> it's not strange to think of a sequential number generator that the numbers to be called but rather what it probably means is to offer up so every sequential number generator. >> from the beginning i have wondered could the tcp a lawsuit against smart phone users actually prevail given that they automatically dial numbers in the way a
sequential numbering system does? it doesn't seem like it could be an automatic telephone dialing system is a the main reason for reading things that this law has not replied to the respondent? >> that could include smart phones as you suggest and that limits the circumstances but the second is it doesn't include the word problematic and if that's the right way to read the statute courts of appeals on both sides but is
not there in the text and if you don't adopt thateading the that presents a sious problem. >> at the time the tcp a was enacted with the same general subject matter area. all of those have the autodialer doesn't is a gesture definition is wrong would congress really have wanted to depart from all of the statutes in this particular way? >> and with the same problem in a different way, it is true with all those devices beyond those the sequential number generators at all but two with
those that are be recorded voice and then regulated congress came at the same problem in a different way and then to the residential lines regardless of the technology that was dialing. and with the sequential number generator. and is somewhere broader. >> why is it congress would have adopted? and then to have these protective dialers but not when there was a live person on the line? what sense that have made from the recipient from the calls perspective? >> and then to deliver the
automated system >> i understand that but definitely they cover the protective dialers. is that right quick. >> no. so i don't think the recorded voice is part of that. >> what about the recorded ways? >> there is. but the way is to serve time on the call when it is connected in a way to connect live operators. >> good morning mr. ellis. two questions.
first, think your argument depends upon the congress adopting the statute the word devices that use random number generators to store telephone number so what evidence do you have that exist in the world? number two, the same question i posed the excellent open and call the fourth possible interpretation to understand the problems with that but it does overcome this difficulty. i am curious why it wasn't addressed and why we need t rule out. 's legacy the first question there were devices in the world. and that automatic dialing system in 1991 using the
number generator to the dialer to store them for dialing and i don't think it's anything those generators to store those in the same way you might say i have a backup power generator that backup in stores for access or the way you might say i can use the web browser to do something more than just browsing the web. asked for the latter, the possible interpretation we think it is not available. >> i understand that but that's a question. >> the consequences of that come it's not the best reading. >> i understand that ms him a question. does it make a difference? >> yes it does.
in the real world to understand and then calling in random order but that's not the problem the problem is that definition and the restriction calling indiscriminately and that would result in that's what congress is trying to get. >> justice kavanaugh. >> good morning. justice thomas and justice so mayor and others have talked about the guilford of the statutory language to current technology. and i want to break that down one is the addition of our artificial week with these calls that covers the house
with the specialized lines in that part still makes sense and applies today. correct quick. >> yes. >> okay. then you have the e-tps mission which only applies to the specialized lines not to the house go because artificial the recorded calls are already prohibited getting as something that artificial and recorded calls so what is that getting at, athe time with the real world problem and does that have any relevance at all today as justice thomas and sotomayor your were indicating? >> it may have addressing
those be recorded calls. >> i will stop you right there getting to justice kagan do you think and instead of over and made a mistake? >> i don't think that. i think life calls could equally cause problems at all think we want telemarketers on the 911 line or bothering people there patient room or in 1991 making calls to cell phones which were unintentional at the time they would charge by the minute those parts of the problem are exacerbated but also caused b indiscriminate calls from the live operators. >> mr. ellis some of the lower courts have characterized this provision as ambiguous and
with this situation and you and your colloquy with the chief justice suggested although the fcc only has a narrow band of authority you are not ruling that out either. so can you explain why that word apply here with those two conflicting deciding which is the best as i would've thought chevron when congress deliberately chooses open-ended or vague language it is delegated to the agency to me the choice that this provision does not strike me as how to regulate this. >> that is a fair question your honor in the chevron can
say if the statute is ambiguous we have not address those issues here that there is an outstanding agency interpretation with the chevron deference or not that is a fair question. >> thank you counsel. >> one minute to wrap up. >> i will close that the respondent identified those six reasons i don't think it has even if you disagree with and it took that approach even to discard the ordinary rules of grammar and construction. in light of the response it's clear on page 37 and in his view drafted the definition to have all technology used with
the automated calls does not clear the congressman include the provision at all than they could strike out not just one wo but the entire phase of the number generator if not all of section 227 a1 a and then to reach the same universal device that is the fluidity ofhe court and we urge the court not to do so again. >> thank you counsel. >> mr. chief justice may it please the court. any method of interpretation contextualism or consequentialism fors affirmative commercial purposes overwhelmingly clear it is privacy only focus on text this involves an ordinary meaning of grandeur and cognition and for example to maintain to be deloped using eminent domain nobody rules
that we must maintain land using eminent domain the adverbial modifier links up with the verb choir as an ornary meaning. is the conjuncons and this conjunctive cannon to the state categories drawing and producing in the word order is significant. second, the word store and/or are real words only on our reading. third, the harmonious reading cannon the consent provision makes little senseith random number generation plane consent known people. fourth, the presumion against and effectiveness facebook of the into oblivion because they used word for numbers to annoy pple just as they did in 1991 just five mont and two days ago the court repeatedly said the act prohibits almost all solicited robo calls the borrowe numbers would have been stored
the court had invalidated in that case nofacebook argues for the across the board exemption effectively all autodialer calls are exempt they say this is call the pipeline one - - a vapor like one that kills the statute and privacy. >> thank you mr. garner. do you agree that the objective is to settle upon the most natural meaning of the statutory language? >> yes your honor. >> if these various rules those are pertinent we don't assume the ordinary speaker applies those cannons or rules of syntax quick. >> that's correct your honor.
and then to understand and using a spatula lifts the element out of the pn. nobody stops to say do i have to use a spatula to lift the pn. >> so the most useful way is to take pole ordinary speakers of english to ask them what that means is that the st useful rule of construction and to take a poll of everybody that would be useful yes. >> so you say a facebook wins we will all be flooded with robo calls?
doesn't the statute independently bar the calls from the recorded voices that is where most ordinary speakers would regard as a robo call. >> the difference to have that legislative different set immediately people would be befuddled. >> they just weren't. >> lawyers to. >> but the point is that congress didn't write the legislation with theechnical rules and mind and think ordinary speakers but not read them that way. so the most useful at first blush reading it and terms of how that makes sense most would have suggested friends
on the other side. >> your honor i respectfully disagree because the actual meaning of the words. if you just look at it mechanically and hastily, yes it is the way. as justice boseman said paraphrasing slightly the well-dressed statute must be able to withstand the attacked by and intellect to skew the meaning and i think that's a problem. >> what significance does it make the ordinary speaker of english word have a very different college background than in 1991? >> because of those advances in technology the social media companies are exactly where you are we know every mouseclick in the last 20
years and then that is carrying the handheld device remains the same. >> justice thomas. >> thank you mr. chief justice. taking off your last point, the technology has changed talk about the average person in most have no idea what some of the technology was in that most people would not realize caller id was cutting-edge and had to be purchased separately and most did not have cell phones in fact very few people did s
technology has changed moving along very rapidly. and then to modern technology like facebook or instant messaging et cera is under a sense of futility? >> your honor i don't the average american is familiar with robo calls and understand that the's numbers they don't if they were randomly generated or sold because they gave the number to somebodyn fact would be morphed the somebody they had dealt with entrusted sold their numbers. >> it doesn't have to randomly generated anymore you
make my point about technology in the old days it would be randomly generated because there's no way they could have that much information and use that instantaneously. >> in 1991 tse that i hesitate to talk about legislative issues d't like talking about history but and the tabase came up over 200 times generators came up only four times in the whole legislative history. >> thank you. >> thank you justice breyer. >> as you read if they are using a phone.
>> is not quite right it has an automated dialing system. >> so using automatic. so you can't use the automatic system to store numbers was there a lot? >> was there a lot more what was the situation? >> there was a database that was sold and also those automatically generated that's by those have become superseded. >> i got it. >> so at the time that's what
you think they want to have it both ways. >> yes your honor. so the world changes within that ordinary definition like cell phones. and automatic dialing. so that's broad and so do you narrow that? that is like the famous real world example like the endangered species so it is that dynamic meaning changing over time and then to expand
the statute be here is it to contract the statute. any comment? >> reading that with the number generator which produces numbers with that specific technology. >> so to interpret that dynamically to adapt the changing circumstances looki at the context of how it has changed in order to decide how to do so there are a few words is there anything wrong with reading the statute with the change over time as technology changed and that context as at
hand what do you think quick. >> i have no control with any justice that wants to do that. >> in your expert view what do you think. >> i am a proponent of that cannon but i do think the word store and or it almost makes congress look like what has happened in the last 29 years congress looks prescient saying store and for. >> justice alito. >> and that courts should have the power to declare a statue obsolete and if we have that power it might be a good
candidate but we haven't going to so far and assuming that we don't fall prey the horrible's with the advent of smart phones and social media think about the technology that existed at the time the statute was enacted it seems to provide the greatest practical problems for your interpretation is call forwarding which was widely available once enacted. is not covered under your interpretation? >> no. in fact a normal cell phone in normal use would have to be
altered significantly to be an autodialer but that makes it somethinthat is not automatic anything with a push of a button to send a message , automatic dialing is preprogrammed to send messages automatically without human involvement. >> isn't it true everything that computers do at some point require some degree of human intervention or instruction? >> that is true your honor that involves human involvement but selecting the number to be called that's the human intervention immediate placement the fcc and the aca and the dc circuit 11 circuit have all held human intervention and does exclude those calls from atps.
>> what about the huma interventionist required? >> pressing buttons, human being placi or sending a message or placing the call and the direct placement of the call. >> thank you. >>ustice sotomayor your. >> counsel if we really your wa way, the consequences that every cell phone owner would be subject to the harsh criminal and civil penalties . . . into automatic dialers.
and face time and things of that nature basically automatic dialing and people joined together by that process so i don't believe we should believe that our interpretation couldn't affect the development of new technology to help people do things more quickly. but in the process ended up filing it in the statute. a. >> like the dc circuit it'd this claims the result of normal uses would produce liability. but there is a question of functional equivalence and the prohibition speaks of consent the difference between text messaging groups and friends is everybody has a consent that
there isn't a problem but the difficulty is when people's privacy is being. >> you started off by some kind of stature or sentences where the meaning of the word is still clear rapid pace and that might well be. but would you at least acknowledge what you are asking us to adopt have a shared direct object and numbers to be called and then a modifier. setting aside the semantics for a moment, do you agree the grammar favors facebook? >> i don't think there's
anything ungrammatical. it's unusual syntax that shows the incident variety english speakers can divide just like a spatula left the spatula and told the pan, there is no grammar that would render this ungrammatical. perhaps a little awkward but not ungrammatical. >> you took out the shared direct object and that the placement of the using a random message generator so you considerably clean that up i would say to acqre the land to be developed using eminent domain. >> that's one where i tnk the
point made sometimes grammar has to give way because the meaning is so clear and it is so clear because you can't imagine the eminent doma being used to maintain land and for the argument what does it mean i think in the point the meaning here is not so impossible. therthere's a little bit of awkwardness, but that can be explained by looking at the kind that existed at the time that generated the numbers. so, that meaning is possible is
there any proper way for reading the sentence, to me if you look at the sentence it seems clear from the text itself that congress was concerned about no numbers previously no numbers obtained from any source. those are stored and those that e not previously known but are generated by one of these machines that covers the universe of numbers and the wording therefore makes sense. another thing i might mention is that some we all know what computer storage is but a word like produced if you say they produced the numbers you think what does that mean. it's sort of like a sentence the bird chirps and lies. we know what this means, but
what do you mean lies, what it lie comfortably and it in its ms we wouldn't think comfortably modifies chirps. it's that kind of mofier to explain what we mean. computer production could see the manufacturer of it just doesn' seem complete. >> justice. >> justice. >> good morning, mr. garner. you can see that the grammar is awkward but i would like to pick up where the justice laid -- left off. it doesn't exhaust meaning, okay, fine but on what basis. it's less awkward if it were given to you and when we look at the adverbial
phrase there's nothing to indicate in the statute that it modifies only one of the firms. rules of grammar usually indicate when you have a clause like that it would modify both inforior verbs, right? >> that is a rule you find as an exception to the last antecedent and you find that rule me a lot books, nodding grammar. the point is we must look at the semantic content of the word we don't take the word as fungible more themes and everything before it gets modified. >> l me ask you this. in response to justice ato talking about what happens if we interpret the statute your way and i am still a little unclear of the answer.
if it is divorced from the sequential number generator, to dial such number would seem to be enough, others worry about contemporary cell phones that do that, those that captured numbers that had been filed and you can press redial, morrison cell phones. why woul't this statute make a criminal of us all? >> each of the actions involve human actuation. >> a human person to push the redial button but in what ways does the statute requires th on your reading? >> to make sense of the provision. >> have equipment that stores a number and used to dial the
number or human actuation as part of thequation. >> it does the dialing. >> capacity to store. >> i don't mean to. >> capacity to dial. in 1990 a capacity for a stored number. >> it is not considered automatic you press the button. >> congress could define anything to mean anything it wishes so it can define automatic dialing system to
mean what it wishes or the capacity to dial a stored number. >> the equipment - >> you are putting a lot of words there. >> looking at the definition itselfit means equipment that has capacity to dial such numbers and the word automatic is the word being defined, that is where the courts and fcc have gotten the idea human intervention is critical, to take a normal cell phone. >> iis necessary to avoid that. >> brett kavanaugh. >> good morning. this will depend on the text that is we covered in the briefs and other questions. i'm not going to be labor that
but i want to ask more questions to follow up. what it is getting at. even if we agree with the other side, robo calls are still prohibited meaning artificially recorded calls, that is not affected in walden's case, that part of the statute, to prohibit prerecorded artificial calls to cell phones, correct? >> i don't belie that is correct. robo calls is defined from last year to include all violations of this statute.
>> to mean artificial or prerecorded calls, if i use it that way that part of the statute is not an issue. it will still apply even if you were to lose this case. >> yes. >> then you said the purpose, you started with this, the purpose of separate -- separate from the prohibition on artificial or prerecorded calls, the purpose of this is privacy at least in part. >> the entire tca -- >> ts provision in particular. the problem with the statute it creates is the prohibition does not apply to the resident and
that suggests the prohibition about something other than privacy how do you respond to that? >> there were different protections given by congress. the residents did prohibit those pre-recorded calls and they also have a do not call list they are protected by it was a do not call mandate across the board unless you have concerns it is an emergency. there were reasons for this that cell phones are carried on a person and with you at all times, they receive text messages and residential limestone and ople havg to pay for receiving calls and
some still do, one of e opinions in bar set in 1991 the cell phone owner not only suffered the pleasure of receiving robo calls but also paid for the privilege. >> you referenced in the brief state statutes, they prohibited ats technology combined with free recorded or artificial messages, congress severed those two things in separately recorded artificial messages and even with a live operator, does that suggest the state statutes are not probative here? >> they are worth looking at the placement of using random or sequential generator, there
was variation among e states and what we ended up as very nuanced and represents legislative compromises. >> justice barrett. >> you talked in a number of these in response to a number of questions you have been asked about the need for human intervention, you talk about the finger hitting the retail button on the phone. what about using an auto reply function on an iphone? i could set that to say do not diurb me, i'm driving or sleeping and it comes with the iphone, not special software, will my contexts, is that the necessary human intervention? i'm not pressing the button each tim
>> the communication -- >> that is not what i asked her. i asked about human intervention. is that similar to human intervention? >> it is a different circumstce. programming it would not involve human intvention but thconsent provision - >> i'm not asking if it was covered by the statute. i am asking if that counts as human intervention. your argument leans onhe idea that human intervention means pressing buttons on the phone that makes the call. justice alito asked how far that goes with human interventi at some point, your opponents, the seventh circuit, the auto reply
function would be brought within the statute. i'm not asking for all of the arguments to that effect but only about the intervention point. would that be enough one step removed by using the auto reply function, is that human tervention? >> i don't believe it is. >> how do you tell when human intervention is close enough to not be human intervention anymore? >> there are difficult cases, shades of gray and the bright line test congress devis is concerned. there will be a lot of cases. >> i wasn't asking about the consent. you talked in your brief, i am wondering if you can identify any case because you say there is none in which a court has that, i ask because it strikes me as a concept that might make sense in some interpretive
concept if one interprets literary language, you lean on this idea the ordinary language or what would make sense to people, gives it a different name. is that a legal concept? you talk about it reading law but also a modern english usage with a broader range of grammar problems. it is a legal concept? is ippropriately applied to the law? >> the linguistic content has been recognized the law. this court frequently said we go by the sense of the words more than pedantic rules of grammar. the court said that many times. >> is that a proposition you would dorse? going to the sense of the words and the purpose of the statues would be contrary to the interpretation you have
endorsed in other contextss. >> i don't endorse broadly as it commonly appears as not to appear in the po scalia years and don't endorse it probably but it does recognize we must look at the sense of theords to understand the senses. >> thank you. >> take a few minutes to wp up. >> thank you. i will take 60 seconds. it would have been possible in 1991 to download the entire phone book and autodial every number with impunity. as long as you store the numbers on a floppy disk or hard drive, just not algorithmic number generator. piece of the question not meant for storage never nsibly meant that. isn't about cell phones calling but cell phones being caed, computer systems that send millions of ilgal calls per day.
congress, nonessentialalls to be bad but targeted nonessential calls more intrusive to be quite acceptable. in bar the court said debt collecrs are not free to send in the robot. facebook wants to free up all the robots for unsolicited calls. we urge the court to reject this misreading and affirm. >> rebuttal. the point has been made there was awkwardness about talking about the verb store and using random or sequential number generator. that awkwardness can only matter for one of two asons, one if it were just impossible to use a random or sequential numberenerator to store numbers but it's not impossible, not technologically
impossible nor is it impossibl in ordinary usage, not as if m using the generator as part of the storage process but the word make sense like dialing using random or sequential number generator. the other reason it could matter is a severability problem. anything that uses a random number gerator will use the generatoto produce numbers but there is a fluidity problem on the respondent side of the case because it would read the words using random or sequenti number generator out of statute and you can't read this statute when you understand the limited scope of the ats prohibitn without thinking that is part of the statute. thers been some discussion about how automatic sothing needs to be and if it could save cell phones. the adverb automatically and for be all phrase without
intervention none of those phrases is in the statute and what is in the stute and the modifier that gives a dial in system a sense of at a modicum this is a seential number generator. even if you read that word into the statute it doesn't solve the problem. if i tell sya to dial a number from one of my stored contacts it is as automatic as dial in gets and call forwarding in 1991 was just as automatic. and it would automatically forward you to a different line and if you typed in the wrong line you could be looking at liability under the q cpa. a discussi about the importance of 1991 versus 2020. 1991 is most important for interpreting the state itself and if you look at things,
anything that existed in 1991 like call rwarding the problem is raised and a response from the fcc was look at the statute, those are not random or sequential number generator. look at testimony in 1991 is telling the direct marketing association did oppose the telephone dialing system prohibition because that is not what they were doing even though thewere using stored lift. the guopposing it was ray coulter who made automati dialing systems that use random or sequential number. 2020 may be relevant for constitutional, we ask that you reverse the ninth circuit. >> the case is submitted. >> here's live coverage friday. on c-span president-elect joe biden and vice president-elect kamala hars introduce a number of tips including marcia fudge as housing and urban development secretary and the
agriculture department, that is too:30 p.m. eastern. on c-span2 the senate returns in the morning at 9 am for more debate on the defense program bill, also pending a bill funding the federal government for one week. the continuing resolution is already past in the house. >> next a look at the economic and fiscal policy of the incoming biden administration and the next congress, the brookings institution heard from treasury secretary wrence summers and been burning key. this is 2 hours. >> am david wessel, director of monetary policy at the brookings institution. on behalf of the peterson institute welcome to our timely event, fiscal policy advice for joe biden and congress. as we gather today we congratulate hudson center colleague janet yellen, joe biden's choi