CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 03:49:16 -0400 60 hourly 1 Sixth Circuit Holds That Stored-Number Systems Meet the TCPA’s Definition of an Autodialer, Deepening Circuit Split to be Addressed by the Supreme Court Next Term Tue, 04 Aug 2020 14:42:15 -0400 It has been more than two years since the D.C. Circuit found the Federal Communications Commission’s (the “FCC”) discussion of predictive dialers and other equipment alleged to be an automatic telephone dialing system (“ATDS,” or “autodialer”) to “offer no meaningful guidance” on the question. In the absence of an FCC ruling on the remand, multiple courts of appeals have addressed the statute’s definition. In the most recent case, Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit adopted (in a split decision) a broad definition of an autodialer. Construing the term ATDS to include both devices that “generate[] and dial[] random or sequential numbers,” and “that dial from a stored list of numbers,” the Sixth Circuit has aligned itself with the Second and Ninth Circuits in a growing circuit split, with the Third, Seventh and Eleventh Circuits adopting a narrower interpretation. At this point, all eyes are on the Supreme Court, which accepted a case addressing the ATDS definition for next term.¹ The FCC, meanwhile, is not likely to address the core ATDS definition until after the Supreme Court ruling.

Case Background

Allan came before the Sixth Circuit on appeal of the district court’s entry of summary judgment for plaintiffs. Plaintiffs alleged that defendant had placed 353 calls to them using an ATDS after they had each revoked consent. The district court held that defendant’s system qualified as an autodialer. It was undisputed that the system did not randomly or sequentially generate numbers. It would place calls to a daily-created list based on a stored list of a numbers in connection with collection of specific individual’s private education loan debt. By a 2-1 majority, the Sixth Circuit concluded that equipment may be an ATDS if it has the capacity to store numbers to be called, or to produce numbers using a random or sequential number generator, and to dial such numbers.

Majority Opinion

The majority opinion found that the ATDS definition is facially ambiguous. The TCPA defines an ATDS as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator” (and the capacity to dial those numbers automatically). The opinion engaged in a grammatical analysis of the statutory text to resolve the definition’s latent ambiguity, which interpretation it then confirmed with reference to relevant statutory and administrative history.

The Sixth Circuit concluded that a predictive dialer or system that dials from a stored list could qualify as an ATDS under the TCPA. The Court relied on the existence of exceptions to help establish the rule. For example, the Court confirmed that the “prior express consent” exception permits calls made using an autodialer if the recipient has given his or her prior express consent to receiving those calls. Thus, it reasoned, “[a]n exception for consented-to calls implies that the autodialer ban otherwise could be interpreted to prohibit consented-to calls. And consented-to calls by their nature are calls made to known persons, i.e., persons whose numbers are stored on a list and were not randomly generated.” Ergo, the Court held that the definition of an ATDS must broadly sweep in stored-number systems and predictive dialers, not just calls to unknown individuals via random or sequential number generation.

Delving into the TCPA’s legislative history, the Court highlighted Congress’s intent to crack down on pervasive and intrusive telemarketing practices. Rather than regulate certain types of technology used to place calls, the TCPA was meant to curb the calls themselves – particularly the near-daily, multiple calls that formed the Allan plaintiffs’ cause of action.

Consistent with every other Circuit to have addressed the issue, the Sixth Circuit reached this decision without administrative guidance, holding that prior guidance from the FCC, including those pre-2015, was invalidated by the D.C. Circuit in its 2018 decision ACA International v. FCC. While some District Courts have relied on those prior FCC orders, the Circuit Courts, with the exception of the Second Circuit, have held that the prior orders were set aside.

Importantly, the Court affirmatively declined to comment on the potential impact of human intervention on dialing because, it found, the defendant failed to present a legal basis for that argument in this case.


The dissent disagreed with the majority’s conclusion and methodology, putting forth a third interpretation of the statutory language. Rather than modifying the verbs “store” and/or “produce,” the dissent maintained that the language “using a random of sequential number generator” should be read to modify the entire phrase “telephone numbers to be called.” In the instant case, because the telephone numbers dialed were not generated randomly or sequentially, the dissent would have held that the equipment at issue did not qualify as an ATDS.

The dissent gave four reasons why its interpretation was the “best” reading among the three possible interpretations. First, it does not require a judicial rewrite of the statute as does the definition of an ATDS that includes stored-number systems: even if unartfully drafted, it is grammatically correct. In contrast, the majority’s definition requires a grammatically incorrect reading of the statute. Second, it avoids the problem of superfluity associated with a definition of ATDS that excludes stored-number systems (thereby rendering the term “store” in the statute’s definition surplusage). Third, the dissent concludes that the interpretation is consistent with the FCC’s early orders interpreting the TCPA. The FCC’s early definitions of an ATDS define it “as a device that uses a random or sequential number generator.” And fourth, the dissent argues that Congress’s intent was in fact to curb the use of machines that dialed randomly or sequentially generated numbers, pointing out language from an early congressional hearing to that effect. (KDW note: This argument is similar to the argument made by then-Commissioner Ajit Pai in dissent to the 2015 FCC decision that was overturned in ACA International v. FCC.)

What Comes Next

The Sixth Circuit’s position only further deepens the divide between the Circuits with six, evenly split Circuits having offered their positions. In the short term, the Allan decision expands the definition of an ATDS for callers and litigants in the Sixth Circuit; thus, increasing the potential risks and exposure.

The Allan decision is not likely to have lasting effect, however, because the United States Supreme Court has accepted a case to address the ATDS definition. The Sixth Circuit’s reasoning in Allan closely tracks the Ninth Circuit’s decision in Duguid v. Facebook, 926 F.3d 1146 (9th Cir. 2019). That decision has been accepted for review by the Supreme Court and will be argued in the fall. The resolution of the appeal should settle the question of what is an ATDS, providing (we hope) consumers and businesses alike with clear guidance on permissible autodialing systems.

Interestingly, the defendant in Allan had opposed a motion to stay the pending appeal until the Supreme Court reached a decision in Facebook. With this unhelpful ruling in hand, the defendant in Allen may file its own petition for certiorari, and/or seek further review by the Sixth Circuit en banc.

[1] These circuits stand opposite to the Seventh and Eleventh Circuits, which hold that an ATDS must use a random or sequential number generator. Although the Third Circuit has also weighed in Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018), the Allan court took the position that it did not expressly construe the definition. “The Third Circuit has not expressly addressed this question, but it did assume (without providing any analysis) that an ATDS must use a random or sequential number generator.” Allan at 5, n.3; but see Dominguez v. Yahoo, Inc., 629 F. App’x 369 (3d Cir. 2015) (considering “the definition of ‘random or sequential’ number generation” and confirming “the phrase refers to the numbers themselves rather than the manner in which they are dialed.”)

Supreme Court to Weigh-in on the Definition of an Autodialer Under TCPA Fri, 10 Jul 2020 16:31:27 -0400 On July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in a case with potentially broad implications for both class action litigation and business communications with their current and potential customers. The Supreme Court’s disposition of Facebook’s petition may settle the complex question of what qualifies as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent. Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns. Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term. In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision. While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed. Now the Supreme Court is poised (potentially) to resolve that dispute.


Since the March 2018 decision of the Court of Appeals for the D.C. Circuit in ACA International set aside the FCC’s overbroad and expansive definition of an ATDS, two distinct interpretations of an ATDS have emerged. In Marks v. Crunch San Diego, the Ninth Circuit held that any equipment that dials telephone numbers from a stored list qualifies as an ATDS under the TCPA. That expansive approach threatens to encompass ordinary smartphones on the market within the TCPA’s ambit. This approach is also employed by the Second Circuit. In contrast, the Third, Seventh, and Eleventh Circuits have opted for a narrower, more textually honest and logical interpretation, that requires a showing that equipment has the present capacity to generate numbers using randomly or sequentially and dial them. (Arguably, the D.C. Circuit’s decision also called for an interpretation closer to the Third, Seventh and Eleventh Circuit interpretations). District Courts in the remaining Circuits (as well as some where the Circuit Courts have spoken) have generally (but inconsistently) adhered to one of these two approaches. Some of our prior discussions of these issues can be found here and here.


In Facebook, Inc. v. Noah Duguid, et al, Case No. 19-511 (2020), plaintiff Noah Duguid alleges that defendant Facebook had contacted him via text messages without appropriate levels of consent using an ATDS, as that term is defined under the TCPA. Mr. Duguid is not a Facebook customer and alleges that he received repeated login notification text messages from Facebook. Plaintiff alleges that he never provided the company with his cellphone number, much less prior express written consent to be contacted by text. Plaintiff’s original complaint was filed in the Northern District of California in March 2015 and dismissed without prejudice for failure to properly allege that an ATDS was used to send the texts at issue. In his Amended Complaint, Duguid added factual allegations that Facebook used an ATDS by maintaining a database of numbers on its computer and transmitting text message alerts to selected numbers from its database using an automated protocol.

Facebook again moved to dismiss Duguid’s allegations arguing that the TCPA was unconstitutional and that Duguid failed to plead the use of an ATDS. On February 16, 2017, the District Court granted Facebook’s motion to dismiss, finding the ATDS allegations were insufficient. Because of that finding, the court never reached the constitutional question. The court reasoned that Duguid’s ATDS allegations “strongly suggested direct targeting rather than random or sequential dialing,” which did not indicate the use of an ATDS. Importantly, the District Court rendered its opinion before the Ninth Circuit’s interpretation of the ATDS definition in Marks v. Crunch San Diego in September 2018.

On June 13, 2019, the Ninth Circuit reversed the lower court’s dismissal. Applying the Marks standard, the Ninth Circuit reasoned that Duguid had sufficiently alleged that Facebook used an ATDS by alleging the equipment “had the capacity to store numbers to be called and to dial such numbers automatically.” The Ninth Circuit separately addressed Facebook’s constitutional challenge to the TCPA and agreed that, although the TCPA included content- and speaker-based restrictions on speech, the overall statute could be salvaged by severing what it saw as the most offensive aspect—the government debt exception.


Facebook appealed and in its petition to the Supreme Court presented both the constitutional challenge and definitional question for review.

On July 6, 2020, the Supreme Court upheld the constitutionality of the TCPA in William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020), thus mooting the constitutional challenge in Facebook’s petition. Our analysis of that decision can be found here.

On July 9, 2020, three days after it released its decision in Barr, the Supreme Court granted certiorari on the following question: Whether the definition of ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential generator”?


The Supreme Court’s resolution of this circuit split has the potential to forever change business communications by making it more or less difficult for businesses to reach their customers. As noted, a threshold question in TCPA litigation is whether equipment used to originate a call or text is an ATDS. The D.C. Circuit, in remanding the FCC’s 2015 expansive definition, noted that definition’s “eye-popping sweep.” Just how far the 29-year-old TCPA’s definition should reach into modern dialing technology has been a central question in litigation since the D.C. Circuit remand. How the Supreme Court addresses this could affect the methods businesses use to provide notifications and reminders to customers as well as how they obtain new customer and collect debts.

In addition to resolving the question of an ATDS, the Supreme Court’s acceptance of Facebook’s petition has other implications. In the short term, companies and practitioners are likely to see stays across the robust and active TCPA docket as lower courts await direction on this core (often threshold) legal question from the Supreme Court. While the decision in ACA International returned the ATDS definition to the FCC for consideration, the Supreme Court’s grant also makes it less likely that the FCC will take any additional affirmative steps on the definition of an ATDS until the Facebook case is decided.

The Supreme Court’s next term opens on October 5, 2020, and oral argument will be scheduled for a date sometime thereafter. A decision can be expected to be published sometime between the argument and when the terms recesses in late June/July 2021.

Supreme Court Upholds Constitutionality of the TCPA Thu, 09 Jul 2020 15:14:17 -0400 On July 6, 2020, in a 7-2 decision, the Supreme Court upheld the constitutionality of the TCPA, but severed as unconstitutional the government debt exception. William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020). Our preview of the Supreme Court’s consideration of the Barr case can be found here and our summary of the oral argument can be found here.


When first enacted in 1991, the TCPA prohibited calls placed using an automatic dialer or prerecorded voice with certain, specific exceptions. In 2015, Congress amended the TCPA to permit calls that relate to the collection of debts guaranteed by the U.S. government. That amendment does not permit the use of the same technology for debts guaranteed by private lenders or calls related to other topics, which served as the basis for challenges that the exception rendered the statute unconstitutionally content-based in violation of the First Amendment. In 2019, the Fourth Circuit agreed, finding the exception failed strict scrutiny, was unconstitutional, and should be severed from the TCPA. The government disagreed with the Fourth Circuit’s decision and petitioned the Supreme Court to review the decision. Plaintiffs also filed a cross-petition.

Supreme Court Affirms

In the controlling opinion written by Justice Kavanaugh (joined by Chief Justice Roberts and Justice Alito), relying on Reed v. Town of Gilbert and applying strict scrutiny, the Supreme Court held that the government debt exception to the TCPA was an unconstitutional content based speaker restriction. As a remedy, the majority opted to sever the government debt exception from the TCPA, which leaves the remainder of the TCPA fully operative.

Justice Kavanaugh reasoned that both severability principles and the Communication Act’s severance clause mandated severance in this case. Justice Kavanaugh also reasoned that the remainder of the TCPA survived the constitutional challenge because Congress has a continuing interest in protecting consumer privacy, noting that “[t]he continuing robocall restriction proscribes tens of millions of would-be robocalls that would otherwise occur every day.”

In a short concurrence, Justice Sotomayor argued that the exception should be subjected to intermediate scrutiny; however, she agreed that the exception also did not survive that analysis and therefore should be severed.

In a partial dissent, Justice Breyer (joined by Justices Ginsburg and Kagan) argued that the Supreme Court should have applied intermediate scrutiny because the restriction did not suppress a particular viewpoint or threaten the neutrality of a public forum. Justice Breyer reasoned that the exception survived intermediate scrutiny because the speech related harm of the exception was modest in proportion to the important government goal of protecting the public fisc. Justice Breyer also found that the exception was narrowly tailored because it only applied to the limited categories of calls related to the collection of government debt. For Justice Breyer, strict scrutiny should only apply when a restriction interferes with the marketplace of ideas or interferes with an individual’s right to communicate with the government. With respect to the proper remedy, however, Justice Breyer agreed that severability of the offending exception was appropriate.

In another partial dissent, Justice Gorsuch (joined, in relevant part, by Justice Thomas) attacked the Court’s severability doctrine, including because the application of the doctrine in this instance did not provide the plaintiffs with the relief that they had initially sought. Instead of a remedy which allows for the plaintiffs to speak more freely, severance banned additional speech. For Justice Gorsuch, that result undercuts the purpose of the First Amendment, which is intended to act as a buffer against government restriction of speech, not assist it. Thus, he felt severance was an insufficient response.

Ultimately, 7 Justices agreed that severance of the government debt exception was the proper remedy, while only two (Justices Gorsuch and Thomas) concluded that the entire TCPA should be struck down as an improper content-based restriction.


Unless a caller was relying upon the government debt exception to avoid liability under the TCPA, this decision does very little to change the status quo on TCPA enforcement and compliance. The opinion did not wade into the contentious definition of an automatic telephone dialing system under the TCPA (which has become the subject of a widening Circuit split). Accordingly, callers should remain vigilant whenever telemarketing and consistently audit their telemarketing procedures to avoid potential liability.

TCPA In Jeopardy? US Supreme Court Reviews Constitutionality Tue, 05 May 2020 18:11:40 -0400 On Wednesday, May 6th, the U.S. Supreme Court will hear oral argument in a case concerning the scope of the Telephone Consumer Protection Act (“TCPA”) that is of great interest to businesses and communications industry practitioners. In William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020) (“Barr”) the Supreme Court agreed to review a ruling by the Court of Appeals for the Fourth Circuit, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the 1991 TCPA. The 2015 amendment exempts calls from the TCPA’s autodialer restriction, if the call relates to the collection of debts guaranteed by the U.S. government. On Wednesday, the Supreme Court will consider if: 1) the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment; and 2) whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

TCPA litigation has largely focused on the autodialer restriction over the past decade. In 2015, the Federal Communications Commission (“FCC”) adopted an expansive interpretation of the restriction, which the U.S. Court of Appeals vacated and remanded in 2018. While the industry has waited for the FCC to offer further guidance, entities making calls and sending texts have navigated an environment plagued by uncertainty. Several courts of appeals have adopted conflicting interpretations of the autodialer provision. Meanwhile, the FCC could offer its interpretation at any time, throwing the issue into further litigation in all probability. In this environment, the Supreme Court agreed to hear the constitutionality of one TCPA exemption in the Barr case. Many are hoping for a decision that goes beyond the 2015 amendment and offers definitive guidance on the autodialer provision’s scope. This post discusses what to expect – and what to watch for – in the Supreme Court’s oral argument this week.


In Am. Ass'n of Political Consultants v. Sessions, 323 F. Supp. 3d 737 (E.D.N.C. 2018), a group of political and polling organizations who wished to use autodialer technology to contact potential voters, sued the Government challenging the constitutionality of the TCPA’s autodialer ban. The group argued that the autodialer ban is a content-based restriction on speech, which does not survive strict scrutiny under First Amendment jurisprudence. According to the plaintiffs, the autodialer restriction fails strict scrutiny’s narrow tailoring requirement because it allows the FCC to promulgate various exemptions based on the content of the call and the 2015 amendment exempts calls related to the collection of government debt. Therefore, the law is not narrowly tailored to advance the privacy interests of the TCPA. Additionally, Plaintiffs asserted that less restrictive means could advance the TCPA’s interests.

The district court disagreed with the Plaintiffs and found that the government debt collection exemption survived strict scrutiny because it is a narrow exception, which furthers the compelling interest of government debt collection. Additionally, the court declined to consider the constitutionality of the FCC’s exemptions because it reasoned that it was not the correct court to hear such challenges. Regarding Congressional delegation of authority to the FCC to create exemptions, the court reasoned that the delegation “does not substantively except any communications” and therefore “is not facially or inherently content-based.” Lastly, the court concluded that the supposed less restrictive means would not be as effective in achieving the purposes of the TCPA.

Plaintiffs appealed the decision to the Fourth Circuit. In Am. Ass'n of Political Consultants, Inc. v. Fed. Commc'ns Comm'n, 923 F.3d 159 (4th Cir. 2019), the Fourth Circuit held that the government debt exemption failed strict scrutiny due to under-inclusiveness. The Fourth Circuit concluded that the exemption is underinclusive because: (1) the exemption “subverts the privacy protections underlying the ban” by authorizing many intrusive calls, and (2) debt collection calls are “among the most intrusive, disruptive, and complained of phone calls.” However, instead of invalidating the entire TCPA, the court relied on a severance clause in the Communications Act of 1934 (which contains the TCPA) and severed the government debt collection exemption. The court reasoned that severance was appropriate because Congress explicitly intended the severance of constitutionally infirm portions of the Communications Act and the autodialer restriction had worked effectively for twenty-four years before Congress amended it to exempt government debt collection calls.

Consequently, on November 14, 2019, the Solicitor General petitioned the Supreme Court to review the Fourth Circuit’s decision to settle the question of the TCPA’s constitutionality and to provide clarity on the severance of unconstitutional portions of the statute. On January 10, 2020, the Supreme Court accepted the petition for review.

Previewing the Supreme Court Review

The Supreme Court accepted two questions regarding the TCPA:

  1. Is the 2015 government debt collection exemption constitutional, and
  2. Is the appropriate remedy to sever the provision from the TCPA?

On the first question, the Government argued that the government debt collection exemption is not content-based but relationship-based as it is dependent on the relationship between debtors (called parties) and their creditor (the Government). Therefore, it argued, the government debt collection exemption is actually subject to intermediate scrutiny, which it passes since it is a narrow exception, which applies to a few calls only and furthers the significant interest of protecting the public fisc. This comports with the autodialer restriction, which is a content-neutral time, place, and manner restriction. The American Association of Political Consultants (Respondents in the Supreme Court) asserted that the Fourth Circuit correctly found that the autodialer restriction as currently written is a content-based restriction, which fails strict scrutiny and renders the TCPA unconstitutional.


As to the second question, Respondents argued that First Amendment jurisprudence mandates that courts should issue decisions that protect speech and not abridge it. Thus, Respondents argued, finding the TCPA to contain a content-based restriction on speech, the proper remedy should have been to strike down the restriction on speech, not to sever the “speech-promoting exception.” Respondents also argued that the autodialer restriction must be invalidated because the TCPA, even after the Fourth Circuit’s remedy, continues to be an unconstitutional restriction on speech. .

Amicus Curiae Positions

In addition to the arguments presented by the litigants, interested parties filed 17 amicus curiae briefs. On the one hand, supporting the government and the constitutionality of the exemption were many states, members of Congress, student loan servicing centers and several consumer interest groups. In the amicus brief submitted by the states, the states argued, among other things, that the robocall ban should be upheld because it prohibits highly intrusive robocalls regardless of content and therefore passes First Amendment scrutiny. In the amicus brief submitted by the members of Congress, they argued that the TCPA is a critical law that stops intrusions on Americans’ privacy, deters scams, and protects the integrity of the telephone as a means of communication. Consumer groups similarly argued that the TCPA protects government interests “of the highest order” (according to Public Citizen) and argued that invalidation would harm consumer privacy. The consumer interests generally argued that, even if the government debt collection provision fails to satisfy scrutiny, the remainder of the TCPA should survive.

Notably, while not supporting either party, consumer groups the National Consumer Law Center and Consumer Federation of America, joined by telecommunications carrier Verizon, argued that the government’s interest is compelling and argued in support of the TCPA’s restrictions on calling, particularly restrictions on unconsented calls to cellular phones.

On the other hand, supporting the position that the provision is unconstitutional were the U.S. Chamber of Commerce, debt collection companies, several business groups and several free speech groups. In its amicus brief, the Chamber of Commerce argued that the TCPA should be invalidated because the autodialer restriction has become a tremendous source of meritless litigation that FCC guidance has not addressed. Similarly, trade groups such as the Retail Energy Supply Association argued that the government debt collection exemption is not severable because Congress would not have adopted such broad restrictions on automated calls without the exemptions adopted in the statute. Debt collectors such as Portfolio Recovery Associates sounded a similar point, arguing that the TCPA’s “open ended delegation of authority” to the FCC to create exemptions renders the statutory scheme unconstitutional. The Retail Litigation Center, while ostensibly not taking a position on either issue, offered an extensive critique of the TCPA’s “real world effects” on communications with customers and urged the Court to “address this dysfunction” in its disposition of the case.

What to Watch For in Oral Argument

With this lineup of arguments, the Supreme Court will hear oral argument in a highly unusual setting. Due to the COVID-19 pandemic, the Supreme Court scheduled its first-ever arguments to be held via teleconference for this week, giving court-watchers an unprecedented opportunity to hear arguments live, rather than via audio files released after the argument. Due to the teleconferencing format, the Justices will ask questions in order of seniority, rather than the customary rapid-fire open questioning format. In earlier arguments this week, the approach permitted a more straightforward examination of the issues, with fewer interruptions in the litigant’s arguments.

The resolution of Barr could affect many stakeholders. A key question to watch will be the extent to which the Court entertains questions relating to severability of the government debt collection exemption and the broader TCPA critiques offered by various amicus parties. While the Supreme Court has ruled in several TCPA cases recently, thus far, it has addressed the issues narrowly or on grounds not exclusive to the TCPA. We will be watching to see if the Court may deviate from this approach in Barr and bring some clarity to the more contentious provisions of the TCPA.

Carpenters, Carriers, and Cell-Sites (Oh My!): SCOTUS to Hear Mobile Locational Privacy Case Thu, 08 Jun 2017 18:02:37 -0400 Pole-2On June 5, 2017, the United States Supreme Court granted cert in Carpenter v. United States, a case in the hotly contested area of mobile cellular location data privacy. The question before the Court is whether law enforcement must obtain a warrant for historical cell-site location information.

The case stems from 2014, when Timothy Carpenter was sentenced for his alleged role in coordinating a series of armed robberies of smartphone vendors. To support its case, law enforcement obtained access to 127 days’ worth of Mr. Carpenter’s cell-site location records through what is commonly referred to as a “D order” (after the subsection of the act under which the records were requested). Whereas warrants require the government to show probable cause, under the Stored Communications Act, a D order merely requires that law enforcement present “specific and articulable facts showing that there are reasonable grounds to believe” that the records requested “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).

By utilizing historical cell-site location records, law enforcement was able to identify a pattern of contact between Carpenter and his alleged co-conspirators in close proximity to the locations of the robberies at the time they occurred. The prosecution built its case in part around such location information and successfully obtained a conviction before a U.S. District Court in Michigan. Carpenter challenged his conviction in the Sixth Circuit.

Reasonable Expectations of Locational Privacy?

On appeal, a panel of the Sixth Circuit upheld Carpenter’s conviction. In the majority opinion, Judge Kethledge concluded that the Fourth Amendment does not require a warrant for law enforcement officers to request historical cell-site location information. In reaching this conclusion, Judge Kethledge relied on the third-party doctrine, which stands for the proposition that individuals do not have a reasonable expectation of privacy in information that they voluntarily disclose to third parties such as mobile carriers.

Notably, in a concurring opinion, Judge Stranch expressed concern about applying the third-party doctrine to records which reveal personal location information, noted that “[d]etermining the parameters of the Fourth Amendment is the task of the judiciary”, and stated that the courts “have more work to do to determine the best methods for assessing the application of the Fourth Amendment in the context of new technology.”

Judge Stranch is far from the first to invite reexamination of the third-party doctrine. To give but one example, in a concurring opinion in the 2012 GPS-tracking case United States v. Jones, Justice Sotomayor wrote, “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

The FCC’s Role in Cellular Locational Privacy

Regardless of whether the Supreme Court accepts Judge Stranch’s invitation, Carpenter v. United States may hold important compliance implications for carriers.

Historically, the Federal Communications Commission (“FCC”) has played an important role in location privacy matters:

  • In its Third CALEA Compliance Report & Order (vacated in part by the D.C. Circuit in 2000), the Commission adopted technical standards that required carriers to be capable of providing location information to law enforcement.
  • In its E911 Phase II program, the Commission requires wireless carriers to provide location information to Public Safety Answering Points (“PSAPS”) under accuracy standards generally within 50 to 300 meters, depending on the particular technology used.
  • In its 2013 Mobile Device Customer Proprietary Network Information (“CPNI”) Declaratory Ruling, the FCC concluded that “[t]he location of a customer’s use of a telecommunications service… clearly qualifies as CPNI.”
  • Most recently, in the newly repealed 2016 Broadband Privacy Order the Commission categorized geo-location information as sensitive customer proprietary information pursuant to section 222 of the Communications Act.
Next Steps

The Supreme Court’s decision in Carpenter may alter existing carrier obligations or serve as an impetus for rulemaking activity on related matters.

Although the Court accepted the Carpenter case for argument next term (which starts in October), the argument date has not yet been established. Typically, we would not see a SCOTUS opinion until January of next year at the earliest.

We will continue to monitor this case, with particular attention to CALEA and CPNI ramifications.