Are you a criminal? Have you made telephone calls or sent texts that violated federal law?

You probably didn’t even know that you were violating federal law when you made a call or sent a text on your smartphone to another cellphone, but according to the Federal Communications Commission, you probably were. Under the Telephone Consumer Protection Act of 1991, it is a violation of federal law to use a “robo-dialer” (technically an “automatic telephone dialing system” or ATDS) to call a cellphone number except in a few limited circumstances. 47 U.S.C. § 227(b)(1)(A). A robo-dialer is defined as “equipment which has 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.”  47 U.S.C. § 227(a)(1). The Federal Communications Commission decided that, in an effort to be sure that telemarketers could not call cellphones, any equipment with those two capabilities would be considered a robo-dialer, even if the equipment wasn’t being used as a robo-dialer.

Have you looked at your smartphone recently? I bet it has a “contacts” function which stores numbers and can dial them.

So did you, some time in the past and probably without knowing,  actually use a “robo-dialer” ATDS to call or text a cellphone? The FCC thinks you probably did.

Fortunately, a three-judge panel of the D.C. Circuit, led by Judge Sri Srinivasan, widely-thought to have been a top contender for a Supreme Court seat in a Hillary Clinton administration, said: “Wut?”

Here, the Commission adopted an expansive interpretation of “capacity” having the apparent effect of embracing any and all smartphones: the device routinely used
by the vast majority of citizens to make calls and send messages (and for many people, the sole phone equipment they own). It is undisputed that essentially any smartphone, with the addition of software, can gain the statutorily enumerated features of an autodialer and thus function as an ATDS. The Commission in its ruling did not question the observation of a dissenting Commissioner that “[i]t’s trivial to download an app, update software, or write a few lines of code that would modify a phone to dial random or sequential numbers.” 2015 Declaratory Ruling, 30 FCC Rcd. at 8075 (Comm’r Pai, dissenting). The Commission itself noted that “[d]ialing options” are now “available via smartphone apps” that enable “[c]alling and texting consumers en masse.” Id. at 7970 ¶ 7. …

If every smartphone qualifies as an ATDS, the statute’s restrictions on autodialer calls assume an eyepopping sweep. Recall that the statute generally bars the use
of an ATDS to make any call (or send any text message) without prior express consent, and tags each violation with a minimum $500 penalty in damages for each individual recipient of each prohibited call or message. The reach of the statute becomes especially pronounced upon recognizing that, under the Commission’s approach, an uninvited call or message from a smartphone violates the statute even if autodialer features were not used to make the call or send the message. Id. at 7976 ¶ 19 n.70. …

Imagine, for instance, that a person wishes to send an invitation for a social gathering to a person she recently met for the first time. If she lacks prior express consent to send the invitation, and if she obtains the acquaintance’s cell phone
number from a mutual friend, she ostensibly commits a violation of federal law by calling or sending a text message from her smartphone to extend the invitation. See 2015 Declaratory Ruling, 30 FCC Rcd. at 8076 (Comm’r Pai, dissenting). And if she sends a group message inviting ten people to the gathering, again without securing prior express consent from any of the recipients, she not only would have
infringed the TCPA ten distinct times but would also face a minimum damages recovery against her of $5,000.

Those sorts of anomalous outcomes are bottomed in an unreasonable, and impermissible, interpretation of the statute’s reach. The TCPA cannot reasonably be read to render every smartphone an ATDS subject to the Act’s restrictions, such that every smartphone user violates federal law whenever she makes a call or sends a text message without advance consent. …

It is untenable to construe the term “capacity” in the statutory definition of an ATDS in a manner that brings within the definition’s fold the most ubiquitous type of phone equipment known, used countless times each day for routine communications by the vast majority of people in the country. It cannot be the case that every uninvited communication from a smartphone infringes federal law, and that nearly every American is a TCPA-violator-in-waiting, if not a violator-in-fact.

Actually, this kind of legislative and regulatory over-reach happens all the time in today’s rapidly-advancing technology. The TCPA started out with a noble idea: protect consumers from too many junk phone calls, especially with cellphones where, in 1991, consumers paid dearly for every second of airtime their phones were used. That, in fact, was the rationale for the government’s ability to limit people’s speech: if people were paying for the incoming phone call, then it could stop the phone calls that were made without the recipient’s consent. The First Amendment does not stop government from limiting speech that is financially injurious.

But technology and society relentlessly move on, even if statutes and government agencies do not. It wasn’t just telemarketers who were silenced by the TCPA limit on speech. It was also political campaigns, health care providers and others. Gradually a few exceptions, as for health care information, calls from schools about closures, and government callers, crept into the TCPA.

But like the monster in a horror movie who is resurrected to scare again, everyone who owned a cellphone was still subject to the 1991 definition of a robo-dialer. Until March 16, 2018, when the D.C. Circuit shed a bit of light into an increasingly-dim room.

Many people will see this as a logical – almost inevitable – conclusion in today’s connected world. And this is a very limited decision, not touching the free speech issues involved in government regulation, but going off only on statutory interpretation. That restraint is  usually welcome when judges find statutory grounds on which to rule before going to constitutional ones. But here Judge Srinivasan missed an important boat:

There is a bigger message here: when government sets its hand against private speech, even for the most popular or logical reasons, that hand better not be dead. A living hand can move with the passage of time, but a dead hand just ends up strangling an unintended and unexpected victim. Unfortunately, neither legislators nor regulators are particularly foresighted, farseeing or flexible, and rarely do government speech limitations, no matter how hotly promoted, govern so surgically precisely that they only touch the intended targets.

In other words, the speech protection of the First Amendment is often most important when the cause of the moment burns the brightest. For it is caution and restraint that protects the unimagined and unexpected future, even in the face of claims of immediate existential threat. There are a very few exceptions to the First Amendment (such as “fighting words” or other sources of imminent injury), but in almost every other case, the right response to “dangerous” or “annoying” speech is not to limit it, but to counter it with more and better speech.

Maybe now you can use that smartphone to call a few friends and let them know. … Unless the FCC appeals its loss at the D.C. Circuit.

 

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