On Dec. 10, the California Office of the Attorney General issued its Fourth Set of Proposed Modifications to the California Consumer Privacy Act regulations.  The changes affect only two subsections relating to the sale of personal information.

Section 999.306(b)(3) would clarify that a business that operates offline and sells consumers’ personal information must provide a notice of opt-out.  This is a sensible proposal since the current rule applies the requirement to businesses that “collect” rather than “sell” personal information. 

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Section 999.306(f) would reinstitute guidance on the use of a uniform opt-out button consumers may use to opt-out of the sale of their personal information.  Similar guidance was contained in the first set of proposed modifications but was omitted in second and third sets and in the final rule. 

The deadline for written comments on the proposed modifications is Dec. 28, 2020

CHAMPLIN, Minn — Once again, Summit A•R is helping to keep the Holidays bright for local families in need.  Located in Champlin, MN, Summit A•R is a well-established Minnesota based full service Revenue Cycle Management Company that has been in business since 1996.

In keeping with their ongoing commitment to the community, the staff and management “adopted” 3 families this season.  Connections were made with Cross of Christ and Glen Cary churches and the churches hand selected 3 families with children for the adoption.  Gifts were purchased, wrapped, and given to the two local churches who sponsored the adoptions.  Every effort was made to ensure that these families had a bountiful Christmas.  One extra generous donor even bought a bicycle for one of the children in need. 

“Every year I can count on our staff to come up with ideas to serve the community but, given the current pandemic, this year created special challenges and extra need” said Tim Turner, President of Summit A•R.  “They answered the call in a big way… the generosity of our employees and their families always touches me deeply”.   Sandy with Glen Cary, one of the churches donated to, had this to say; “When we presented the gifts to the families, they were astonished, and tears were shed.  These families could not be more grateful, and neither could we!  Summit really came through for us.”

About Summit A•R

Founded in 1996, Summit A•R (Summit Account Resolution) is a national collection agency serving health care, commercial, consumer and many other industry segments. Their focus is to “Preserve Human Dignity” with their P.H.D. collection philosophy. They are members of the ACA, IACC, AAHAM and BBB among other local and national organizations.  888.222.0793 or SummitCollects.com

Now in its fourteenth year, insideARM.com’s Best Places to Work in Collections program recognizes the most positive workplace environments in our industry.  I will be so bold as to say that every collection agency, law firm, or debt buyer with 15 or more employees must absolutely participate — and not just because participation is free.

(2020 was an interesting year, with a pandemic and sudden work-from-home provisions. Those who participated in this year’s Best Places to Work survey should find the 2021 results very illuminating when compared to what 2020 told you.)

We host this annual survey because we believe that it’s good for the industry, and it offers participating companies essential data, gathered confidentially, about what their employees really think. You simply can’t get this information any other way.

One of the biggest barriers to profitability in this industry is employee turnover. If your staff is unhappy, do you think they are as productive as they could be, or that they are representing you and your clients as they should be? Of course not. But where to begin to address employee satisfaction? Your Best Places to Work in Collections results provide you with a roadmap. Please, take advantage of this great opportunity.  

Register your company now.

Compete against companies of your own size.  No need to feel that you can’t measure up against the benefits and resources of a large company, or the family feeling of a small company.  Rankings are determined within three size categories, are: small (15-49 employees), medium (50-149 employees) and large (150+ employees).

Winners have enjoyed great benefits including enhanced reputation with creditors, morale boost, and recruiting support.

It works like this:

1. Employers complete a questionnaire on workplace policies, practices, philosophy, systems, benefits, and demographics. It can take about 4-8 hours to gather all of the info for this questionnaire – but hey, if it was totally simple, it wouldn’t produce meaningful results – and if you register now, you’ll have several months to pull it together. (You don’t have to do this part until February. Right now, all you have to do is register your company, which takes about 60 seconds.)
2. Employees are asked an in-depth set of questions — you choose online or via paper format; either way it takes the typical employee about 10-15 minutes to complete.

That’s it. Within about 6-8 weeks of completion, our partner, Best Companies Group, will produce a list of winners and we start to make announcements.

The process is confidential.  insideARM does not have access to any employee responses. Best Companies Group, which collects all data, evaluates, and selects winners, has no connection to the debt collection industry.  If your staff is — ahem — less than kind, nobody will know but you.  But YOU should know!

Participating companies will receive a free Employer Benchmark Summary which reveals averages on standard employee benefits and best practices reported by those that made the list and those that did not. This is a great tool to help benchmark some of the most common benefits offered compared to those of your organization.

Participants will have the opportunity to purchase the full Employee Feedback Report that provides valuable data including a spreadsheet summarizing employee feedback and written employee comments, as well as a 30-minute consultation call with a Best Companies Group survey specialist.

These reports offer incredibly valuable information at an unbelievably fair price, regardless of whether you are selected as a winner.  The value in having a 3rd party conduct this survey is that you get candid information from your employees; your HR department could never gather this type of information.  And if you chose to do it independently, you’d pay $5,000-10,000.

Simply participating will show your employees that you care, which is critical to retention.  Winning gives you bragging rights and an invaluable recruiting tool.

Learn more about the program, or register here.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

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TCPAWorld remains a dangerous place for folks trying to communicate with their customers using text messages. This is true even in an era when P2P texting is finding increasing favor as a preferred contact channel. In Greiner v. Cadillac Accounts Receivable Mgmt., Case No. 2:19-cv-12479, 2020 U.S. Dist. LEXIS 234221 (E.D. Mich.  November 9, 2020) for instance a Defendant was just denied summary judgment—i.e. the case is headed to a jury—in a case where the Defendant debt collector claimed it sent the texts at issue manually.

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Defendant submitted three declarations from witnesses purporting that the texts at issue—debt collection messages—were sent manually. However, the declarations did not explain what “manual” meant and, apparently, just declared in a conclusory manner that the messages went manually. The Court reasoned that the assertion of manual texting in this context was merely a legal conclusion and rejected the evidence outright. Without the evidence, the motion for summary judgment falls flat.

It is unclear whether Defendant would have won the case had it introduced proper evidence, but the answer is probably yes.

Adding salt to the wound here, this case started off as a small claims matter. Defendant removed it to federal court and spent time and money to bring a summary judgment motion.

And lost.

To a pro per.

Editor’s Note: A pro per or pro se plaintiff is one that is not represented by counsel.

Greiner has a couple of takeaways:

One, defense lawyers need to submit proper evidence. And its quality, not quantity. These folks submitted three declarations, but none of them addressed the heart of the issue—what does “manual” mean? A single, properly worded and supported declaration could have probably won the case.

Two, the risk remains high in cases involving text messages. Even though the messages were sent “manually” and were plainly targeted to collect a debt—i.e. likely tailored to specific consumers and not mass blasted—the court still sent the issue to a jury to decide. The risk is real, folks. Be cautious and seek consent.

Rockville, Md. — This year’s Women in Consumer & Commercial Finance conference — our third — continued building on the successes from previous years, this time in an entirely virtual environment.

Global pandemic notwithstanding, this year’s event hosted more than 600 women from across the financial services industry, and from a variety of roles, all with the goal of empowerment, networking, community, and deep conversation.

“I can’t emphasize how much of a labor of love this conference is, and how meaningful it is to me,” said Amy Perkins, president of insideARM and WCCF Chair. “I owe everyone — from the insideARM staff, to our steering committee, to the women who brought so much light and insight, to the sponsors who saw value in our endeavor — so much praise and gratitude. We were worried at first that we wouldn’t be able to capture the magic of that first year. It turns out, I didn’t need to worry.”

Playback for the sessions at this year’s WCCF conference can be found here.

“It was absolutely a labor of love,” said Stephanie Eidelman, CEO of insideARM and WCCF Chair. “One of our missions at insideARM is to provide everyone we interact with one of the best professional experiences of their lives. And the overwhelmingly positive feedback we’ve received shows us that we hit that out of the park.”

Next year’s WCCF conference will be both a live and virtual event, from December 6-8, 2021, in Scottsdale, Arizona, and at your desk! Get on our mailing list for updates about speakers, panels, and other WCCF info.

Our sponsors were integral to the success of the conference.

Keynote/Conference Partner Sponsor

NeuAnalytics

Lead Community Impact Sponsors

ERC

NCB Management Services Incorporated

Inclusivity / Conference Partner Sponsor

Phillips & Cohen Associates, Ltd.

Conference Partner Sponsor

Crown Asset Management, LLC

interactions

Katabat

Spring Oaks Capital LLC

TransUnion

Building Connections Sponsor

DCM Services

Workshop Sponsors

Connect1

FocusOne

Katabat

Moss & Barnett

Ontario Systems

RedKnot Third-Party Risk Solutions

SAM: Solutions for Account Management

Communications / Tech Sponsor

Solutions by Text

Brand Builder Sponsor

Attunely

Bridgeforce

DebtNext Software

Enformion

Financial Recovery Services

McCarthy, Burgess & Wolff

Provana

New York, N.Y. — RIP Medical Debt gratefully announces a $50 million gift from philanthropist Mackenize Scott, the largest in the organization’s history.

“Our deepest gratitude to Ms. Scott for her compassionate and most generous gift. This is a gamechanger for RIP Medical Debt, allowing us to move towards our goals in a greatly accelerated way,” said Allison Sesso, RIP Medical Debt’s executive director. “We will immediately put this generous donation to work against our vision that includes the strategic engagement of communities across the country, to achieve health equity for all.”

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Since its founding in 2014, RIP Medical Debt has abolished more than $3 billion of medical debt for over 2 million Americans. On average, one dollar donated to RIP relieves $100 of medical debt for those who are two times the federal poverty level or below, whose total medical debt equals 5% or more of their gross annual income or are insolvent.

Medical debt is an American crisis. Forty-one percent of working age Americans are paying off medical debts or struggling to do so. An additional 7 million elderly adults struggle to pay medical bills. Two-thirds of personal bankruptcies cite medical debt as a key factor. The pandemic has worsened this problem: between February and May of this year 5.4 million Americans lost their health coverage – more people than have ever lost coverage in a year.

Ms. Scott shared her reason for the donations on Medium, saying, “Witnessing the determination, creativity, and compassion of people in a crisis has been inspiring… [like] two former debt collections executives enabling donors to anonymously forgive $1,000 in crushing medical debt for struggling families with every gift of $10.”

Medical debt is recognized as a major social determinant of health and disproportionately disenfranchises communities of color by lowering credit scores, blocking access to new lines of credit and decreasing the likelihood that one seeks future medical care. By working directly with community foundations, patient advocates and local stakeholders, RIP plans to continue pioneering its model of community action to acquire and eradicate debts directly from hospital organizations beginning in 2021.

About RIP Medical Debt

Since being founded in 2014 by two former debt collectors, RIP Medical Debt has acquired, and abolished, more than $3 billion of oppressive medical debt, helping over 2 million individuals get out from under the burden of crushing medical debt. RIP works with individuals, faith-based organizations, foundations and corporations. On average, one dollar donated to RIP forgives $100 of medical debt, empowering every donor to have an outsized impact. RIP rose to national prominence on an episode of HBO’s “Last Week Tonight” with John Oliver in which RIP facilitated the abolishment of $15M in medical debt. To learn more, visit https://ripmedicaldebt.org/

NEWARK, Del. — For the second consecutive year, SIMM Associates employees participated in a Holiday Food Drive that benefited the local Newark branch of the Food Bank of Delaware. These types of food drives are essential to the local food banks ability to provide food to the thousands of individuals they serve.  

“Our employees continue to amaze me with their generosity and always doing what they can for the local community,” said Co-Founder and Chief Operating Officer Jeff Simendinger. “Our employees answered the call and there was no encouragement necessary for our staff to participate. This year’s donations seemed to have more of an impact knowing that there are more people struggling due to the pandemic. I am so very proud of all of our employees!” 

The Food Bank of Delaware is a nonprofit organization dedicated to feeding Delawareans in need. 

About Simm Associates, Inc.

SIMM is a full service nationally licensed ARM company providing collection solutions to the student lending, consumer lending, credit/retail card, healthcare, auto finance, credit union and debt buying industries. SIMM provides best in class deceased care solutions that encompass decedent verification, estate location scrub, proprietary Probate Tracker SM claim filing process and an empathetic survivor recovery solution all performed with brand sensitivity and regulatory compliance in mind. SIMM has passed the US Department of Education’s stringent requirements and currently is a subcontractor for the existing Private Collection Agency contract. Its headquarters is located in Delaware in a 32,000 sq. ft. state of the art call center. SIMM holds the following certifications: PCI Level 1, ISO 27002 and SSAE16 Type II. SIMM services customers throughout the United States including Puerto Rico. 
For more information please contact Jeffrey Simendinger COO, jeffs@simmassociates.com, (302) 283-2802.

ELK GROVE, Calif. — Superlative RM, an account receivables management (ARM) company that provides professional recovery solutions for creditors and debt buyers across the US, is excited to announce the opening of our second office located in Phoenix, AZ. With the opening of this new office, we are responding to the rising demands for our services and taking the next step in our business growth strategy. Through the tremendous potential of our new office, we can easily meet the growing needs of our clients across the ARM industry. 

This expansion marks a significant milestone in the growth of our company. The combination of our new Arizona office with our existing California office positions Superlative RM to continue its rapid growth while finding high-quality staff from two strong locations. Our new office is bringing high-quality collections careers to the Phoenix metropolitan area. The centrally located facility is close to major highways, making it easily accessible for employees who live in the city center and for those who commute.

Unparalleled Location and Space

Our new office is directly adjacent to South Mountain Park and Preserve, America’s largest urban park and wilderness preserve, and the Arizona Grand Resort & Spa, a beautiful luxury resort. With exceptional outdoor spaces just minutes away, our new Phoenix location also boasts remarkable indoor features. Unlike traditional office spaces, our modern, open floor plan is bright, airy, and spacious, providing our team with a welcoming layout that fosters increased engagement and productivity. 

“We are delighted with the growth that has allowed our company to reach this most recent achievement. This secondary call center in Phoenix allows us to continue our diversification and expansion into new markets,” says CEO Jerry Terrill. “Our leadership team has experience in building a positive company culture in which our employees thrive and grow. Now, we’re taking that same philosophy into Phoenix and establishing a strong network of talented professionals who share our passion for delivering high-quality, compassionate collections solutions. As we grow and welcome new people into our team, we remain focused on building a strong foundation that will allow us to build capacity, continue our growth trajectory, and work toward the goal of continued expansion in 2021.” 

Career Opportunities in Phoenix

Superlative RM is a great place to work and we are hiring for our new Phoenix location! We are seeking highly motivated and competitive professionals with excellent communication skills who enjoy a fast-paced work environment with a team atmosphere. For more information, please visit our Indeed page or connect with us on Facebook to hear about our latest news and opportunities. 

About Superlative RM

Founded by a U.S. Marine Corps veteran, Superlative RM is an account receivables management company that works for creditors and debt buyers to assist them with recovering past due balances from consumers in all 50 states. We constantly strive to improve by leveraging state-of-the-art technology to optimize our customer service experience and bottom-line performance. We are headquartered in Elk Grove, CA with an additional office in Phoenix, AZ.

Editor’s Note: This article is authored by Joann Needleman, Leslie Bender, and Ann Lemmo of Clark Hill PLC . Joann Needleman and Leslie Bender are members of the iA Legal Advisory Board.

On December 8, 2020, the Consumer Financial Protection Bureau (CFPB) entered into a Consent Order with RAB Performance Recoveries, LLC (RAB) for engaging in debt collection activity without a license in the states of Rhode Island, Connecticut and New Jersey. RAB’s failure to obtain any proper state licensing in those specific states led the CFPB to issue a fine of over $200,000 as well as a permanent order restraining RAB and its principals from ever engaging in a very broad description of debt collection activities. Both state regulators and the CFPB are responsible for regulating debt collection activities and both have a vital interest in the work of the other. However, in this instance, the CPFB acted alone and found that RAB’s conducted not only violated the Fair Debt Collection Practices Act (FDCPA), but their conduct amounted to a UDAAP violation under the Consumer Financial Protection Act of 2010 (CFPA).  

Over time as more modern forms of technology have been introduced in the business of servicing consumer and commercial accounts for others, the lines distinguishing “debt collection” activities subject to state oversight, the FDCPA (and other laws), and the services businesses offer on behalf of creditors regarding receivables have blurred. State regulators have been very cognizant of these activities and used a variety of supervision and enforcement strategies to ensure an entity’s conduct aligns with states’ licensing requirements. State penalties for the failure to obtain a license can be both civil and criminal in nature.   

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It is notable that the CFPB and state regulators have had a Memorandum of Understanding (MOU) in place since May 2013 to coordinate on supervision and enforcement matters regarding these types of action. In this instance, however, the CFPB did not partner with regulators in Rhode Island, New Jersey or Connecticut.   The CFPB’s enforcement action against RAB emphasizes that collecting without a license can also be a violation of the FDCPA because the lack of a license is a false representation or implication that the entity is permitted to conduct debt collection activities in the first place.    

There are other important takeaways that must be considered by entities who provide any services for creditors that involve the collection of money from consumers. First, a title alone does not exempt an entity from licensure; the nature of the services rendered on behalf of the creditor is the qualifier that determines whether the activities fall under a broad interpretation of the phrase “debt collection.” Second, the failure to license can result in significant penalties. In the over ten thousand administrative actions undertaken by state regulators in the past decade for the failure to license, many resulted in a permanent cease and desist, and similar or even remotely-related activity could also be permanently enjoined. 

California and New York will be requiring debt collectors to license in the coming year. Many states have adopted the Nationwide Multistate Licensing System and Registry (NMLS) and will continue to handle applications, renewals and other debt collection oversight activities through this system and registry. Meanwhile, in response to the CFPB’s proposed Regulation F, state regulators urged the CFPB to encourage debt collectors, as part of their FDCPA compliance, to list their NMLS or licensing information in written communications such as collection notices sent to consumers — suggesting that the dovetailing of state licensing and FDCPA compliance is important to both state and federal regulators.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

Facebook + robocalls= instant magic, at least in terms of readership on TCPA blogs. The stakes are HUGE and — as I’m about to explain — the outcome here is actually far from certain. Indeed, this is going to be a real nail biter as we await the outcome. Currently, there is a big battle at the U.S. Supreme Court regarding the problematic definition of an automatic telephone dialing system (ATDS). Below are the ten most important things for you to know about yesterday’s oral arguments at the U.S. Supreme Court in the Facebook case, which looks to clarity the ATDS issue once and for all.

But let’s tee this thing up.

First, the issue: Does the Telephone Consumer Protection Act (“TCPA”) apply to all dialers with the capacity to dial automatically or just to pre-recorded voice calls?

Why does it matter? The TCPA is the only federal statute governing calls to cell phones. If the TCPA does not apply to automated dialers then callers are free to blast cell phones without consent. On the other hand, if the TCPA applies to dialers with the capacity to call automatically, then Americans have to have consent for everyone they call using a smartphone.

How is that even possible? The TCPA governs calls made using an automated telephone dialing system (“ATDS”). Because the ATDS definition focuses on the capacity of an ATDS to dial automatically rather than the actual use of the automatic function in making a call. The Supreme Court is put to a difficult choice. It can either narrowly read the ATDS definition to apply only to systems with the “capacity” to dial randomly or sequentially — which will leave American cell phones open to a blitz of calls from so-called “predictive dialers” that do not have that capacity — or it can broadly read the ATDS definition to apply to all dialers that can store from a list of numbers–which the smartphone in our pocket an ATDS subject to the TCPA.

So, why not just apply the TCPA to everyone’s smartphone? The TCPA has a private right of action enabling a called party to sue for $500.00 for each call made without permission. If the Supreme Court applies the TCPA to smartphones, then YOU would be liable for $500.00 every time you dial a wrong number or call someone without EXPRESS consent.

What are the parties’ positions? Facebook — yes, that Facebook — argues that the statute’s ATDS definition plainly applies only to dialers that call randomly. In its view, Congress intended a very narrow ATDS definition because a broad TCPA would have violated the First Amendment. Plaintiff, on the other hand, argues that the purpose of the statute was to protect Americans from unwanted calls so the TCPA should be read broadly in accordance with that goal. In his view, the problematic language in the TCPA regarding “random or sequential number generators” really only applies to a piece of the definition. This argument is strengthened by the fact there is no way to “store” numbers using a random or sequential number generator.

So, who is right? Facebook (if you look at the statute through the lens of 1991). But a lot has changed since then. Most importantly, the First Amendment just doesn’t matter as much today as it used to. Whereas Congress was right that banning all calls to cell phones using an autodialer would have violated the First Amendment in 1991, it doesn’t so much anymore because Freedom Schreedom — we hate robocalls. Facebook also wins if you look at the problem through the lens of who is impacted by a broad TCPA reading. Congress did not intend to convert millions of Americans into TCPA violators-in-waiting (a holding already handed down by the D.C. Circuit Court of Appeals in analyzing this exact language). But if the focus is on protecting American’s cell phones from unwanted calls, then Plaintiff plainly has a stronger argument, and his linguistic points also carry significant weight.

How did the Justices respond to the oral argument? 

This was a wide-ranging oral argument, with questions sometimes seemingly coming out of left field. The Justices at times seemed to struggle with both the grammatical arguments being presented, as well as with the new-fangled technology at issue. Everyone seemed out of their depths, including the advocates themselves.

There is a lot to unpackage here. For now, however, here are the top 10 things I took away from the argument:

10. Can the Supreme Court deem a statute obsolete? We may be about to find out.

Over and over again, the various Justices suggested the TCPA was a poor fit for modern technologies. This is a true square-peg/round-hole situation and trying to interpret the TCPA’s obsolete language in a manner that covers modern technology seemed more than the Justices cared to do.

At one point, Justice Thomas rather directly suggested that the statute might be obsolete and the Court should not waste resources interpreting it out of “futility.” Later, Justice Grousch picked up this line of questioning, pointing out that the Supremes had never claimed the authority to deem a statute obsolete, but the TCPA certainly seemed to be a candidate.

What does it mean to have a statute deemed obsolete? Well since no court has ever directly held a statute obsolete, no one really knows. Presumably, however, it would render the statute unenforceable, at least in some contexts. Perhaps this is a corollary doctrine to the vid for vagueness doctrine under the due process clause. It will be interesting to see if the Court does anything with it.

9. What is a robocall anyway? The Justices spar with advocates on a word that isn’t even in the statute.

It was interesting to watch the Justices and advocates discuss the meaning of the word “robocall.” It isn’t even in the statute.

So why does it matter?

Well, in a bit of judicial grandstanding, Justice Kavanaugh’s plurality opinion in AAPC pronounced that the Supreme Court was keeping America safe from robocalls in upholding the TCPA from a massive First Amendment challenge in that case. Plaintiff’s counsel handed that right back to the Supreme Court and reminded it that, just a few months ago, it pledged to keep Americans safe from robocalls, which — in plaintiff’s view — includes automated calls.

The Justices — particularly Kavanaugh and Roberts who joined the plurality in AAPC — did not seem pleased with that characterization and tried to position robocalls to include only pre-recorded calls. Quite the retreat.

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8. The rules of statutory construction may not be as well-settled as we thought.

Believe it or not, lawyers like rules. We’re all a bunch of little rule followers. The magic is in applying the rules in the way that best helps your client.

Listening to the Supreme Court argument yesterday, I felt this sinking feeling in my stomach like maybe the rules don’t matter that much after all. Specifically, the rules of statutory construction. Over and over and over again, we learned in law school — and in day to day practice — that Courts are supposed to apply certain very specific (sometimes arcane) rules to discern the meaning intended by Congress.

These rules are critical (I thought) because the alternative, as Facebook’s counsel boldly pronounced at oral argument, is “madness.” Leaving courts free to re-write statutes using whatever criteria they think best.

Over and over, however, it was suggested that these rules might not apply monolithically after all. Chief Justice Roberts asked right out of the gate:  “[Your opponent argues we should] look to the sense of the passage and not the syntax…. as a general matter he’s right isn’t he?”

7. Privacy is a double-edged sword.

One of the more interesting components of Facebook’s argument was a bit of legal jujitsu.

Duguid counsel pressed that American privacy can only be protected by a broad reading of the TCPA. Rather than take that issue on or dispute it, Facebook did exactly the opposite. It argued that Congress didn’t really care about privacy in enacting the TCPA to begin with.

In Facebook’s reasoning, if Congress wanted to defend American’s privacy interest it would have protected “the homefront.” (Yes the term “homefront” was actually used.) But the TCPA does not apply to ATDS calls to residential landlines. It never has. So if privacy mattered, then Congress inexplicably left an “elephant hole” next to a “mouse hole.”

This was a pretty bice tactic that took a lot of the sting away from Plaintiff’s “privacy” argument, but it is also a bit of sleight of hand. Just because Congress didn’t protect residential privacy doesn’t mean it didn’t intend to protect the privacy of cellular phone subscribers. When you factor in the fact that residential phone users are generally said to have MORE privacy protections than cellular subscribers, it does start to become a bit strange that Congress would intentionally legislate backward. (Again the answer likely lies in First Amendment law, but that doesn’t seem to matter.) Speaking of which…

6. The First Amendment is dead in this country.

We just witnessed something so remarkable and sad and insane (at least to me.)

An entire oral argument before the Supreme Court in which expanding a federal statute to impose criminal and civil penalties on users of smartphone technologies is being seriously considered — and ZERO mention of the First Amendment implications if such a ruling were made.

Zero.

ZERO!

I mean, how in the world does one consider expanding a federal statute like the TCPA, which plainly regulates speech, to cover every smartphone in the nation (and to therefore regulate the speech of every American) without at least discussing the First Amendment prohibition on federal statutes that regulate speech?

The only time the First Amendment was even mentioned was when Facebook’s counsel explain to the Court that the reason Congress didn’t originally draft a broad TCPA was due to First Amendment concerns. And then the issue was dropped. It was never unpackaged or discussed.

Just dropped like a dead sardine.

5. The TCPA is likely a pawn in a larger game (again). This time, the battle is over textualism.

The TCPA, it seems, is often a pawn in a larger game.

As one of the most often sued under statutes in the federal arsenal, courts get to see a lot of TCPA cases. And they use the opportunity to position precedent for larger battles. After all, does the Supreme Court really care about who is getting robocalls given the state of America in 2020?

One of the big meta-battles in legal circles is how and whether courts may “re-write” statutes to accomplish the supposed purpose intended by Congress, versus needed to stay very close to the actual language. “Textualism” as it is called, is particularly important in Constitutional review. “Textualists” tend to read the Constitution narrowly to give Americans less freedom (and the government more power to regulate). This is important, say, if you want to overturn case law permitting stuff that you think ought to be illegal.

When you hear that the Supreme Court now skews “conservative” what that mostly means is that this Supreme Court is made up of “textualists” who seek, above all else, to faithfully interpret the text of statutes and the constitution in the way intended by the drafters of the documents at the time they were drafted. There is a fundamental philosophical divide between textualists and other judges who believe that reading law in light of current circumstances is just fine.

The battle between the “at the timers” (textualists) and the “now matters” justices was on plain display in the questioning. Over and over questions about what Congress was intending in 1991 were asked. Thus, while it may seem weird in a case involving a high-technology company like Facebook, much of the discussion centered around obsolete technologies like call forwarding and auto re-dial: functionalities that were available to Congress at the time of drafting that might inform a reader today about what Congress meant back then.

It will be fascinating to see how this textualist battle plays out (arguably, it could go both ways), but there is one thing for sure: the conservative wing of the court is not going to create a precedent in Facebook that might damage its approach in other “bigger” matters of interpretation.

4. This case may be more about “capacity” than anything else.

One of the biggest moments came late in the argument when Gorsuch had Plaintiff’s counsel Garner on the ropes over the TCPA’s focus on “capacity” in the ATDS definition.

The definition, as Gorsuch urged, does not require the actual use of automated functionality. So how can the Court avoid criminalizing ordinary phone calls? Garner tried to push back but had nowhere to go and advocated for an application of the statute to only automated calls. But that is not what the statutory definition says and Gorsuch pummeled him for trying to change the language.

If the Supremes are really caught up on “capacity” — i.e., that the use of automated functionalities doesn’t matter — then that may be checkmate for Facebook. To use Garner’s own example, it would be equivalent to criminalizing the ordinary use of ropes and kitchen knives, because they are implements with the capacity to serve as deadly weapons.

Stated simply: the ruling, in this case, might begin with the Supreme Court focusing on the statute’s use of the word “capacity” and backing into a functionality definition from there.

3.  Human intervention is in the eye of the beholder, which also helps Facebook.

Closely related to the “capacity” issue is the doctrine of human intervention. Plaintiff’s argument against the application of the TCPA to smartphones is that the statute does not apply to dialers that operate with human intervention.

As already explained, Gorsuch tore Garner apart on this point because that’s not what the statute says.

But an even more problematic question is how do you define human intervention? Justice after justice peppered Garner on this point, including a nice zinger by new Justice Barret on the use of an auto-reply feature. There was simply no good answer available.

In the end, the ephemeral boundaries of “human intervention” may be the Plaintiff’s bar’s undoing.

2. There may be a middle ground after all.

One of the most exciting parts of the Facebook appeal for legal nerds like me is that there seemed to be no middle ground: the Supreme Court has to adopt one of two imperfect choices. Either it has to obliterate the TCPA’s ATDS definition (probably the right thing to do even though the consequences aren’t the best), or it has to re-write the statute completely (not what courts are supposed to do and, as explained above, not what this court wants to do at all.) There doesn’t seem to be any other path forward. 

Leave it to Justice Thomas to offer a middle ground.

What if the TCPA just doesn’t apply to texts? The “calls” at issue in Facebook weren’t “calls” at all. They were text messages. The TCPA doesn’t mention text messages. Indeed, the first-ever text message wasn’t sent until the year after the TCPA was passed.

While the entire TCPAWorld might groan at the idea of going all the way to the Supreme Court on the critical ATDS definition and walking away empty-handed, that might be precisely what happens. If SCOTUS rules that texts are not calls or, worse yet, punts on the issue and asks the Ninth Circuit to reconsider it, we may have come a long way for a small ruling.

Then again, text message platforms will be happy.

1. This thing is a closer call than many expected.

Coming into the oral argument, I gave Facebook an 85% chance of success. I think Facebook still has the better chance here mostly because of the textualist bend of the court. Listening in yesterday, I think we’re closer to 60-40.

Garner was the better of the advocates in the courtroom yesterday — sorry, not sorry — and he performed admirably in the face of tough questions. In the end, I do not think it will be enough to carry the plaintiff’s bar across the finish line but it was a commendable effort and one that made this thing a lot closer than it looked on paper.