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I guess I should have seen this coming, but I didn’t. After forcefully battling to keep the TCPA on the books just last term, the U.S. Government has weighed in on the new Supreme Court TCPA ATDS debate. Instead of arguing for an expansive reading of the statute, the Government is asking the Supreme Court to narrowly interpret the statute to only apply to dialers that randomly or sequentially generate numbers to be called. This really does change everything.

And no, I’m not just talking about the compelling legal points raised in the brief, though the brief is outstanding. The brief reads with much more persuasive force than the Opening briefs in Barr. The grammatical analysis of the TCPA’s ATDS definition is elegant and compellingfar better than most of the tortuous I’m-trying-to-explain-something-I-don’t-really-understand arguments you tend to see in these briefs. And the cut-to-the-chase policy analysis is outstanding as well.


Yes, as with most Supreme Court briefs, the Government’s position is confidently and directly conveyed and seemingly leaves little room for doubt. But the potent advocacy in the brief is not the key here. Rather, it's that the Government has now (finally) spoken authoritatively on the scope of the TCPA’s current ATDS definition. 

After all of the battling, all of the wrangling, all of the advocacy to the FCCthere it is. A quiet filing the afternoon before Labor Day that nearly everyone missed. The Government has now had its say: the TCPA only applies to random fire dialers. Great. Now we know.

Pack it up, folks. We win. Right?

I mean, that’s everything right there. This isn’t like Barr where the government was arguing whether the TCPA is constitutional; this is the government weighing in on what the TCPA was intended to cover. That feels pretty authoritative; just like an FCC ruling interpreting the Act but from a different wing of the federal government. And sure, technically, a position statement taken by the US Government made in an advocacy piece to the Supreme Court is probably not binding (probably), but do we really expect the Supreme Court to disagree?

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Sure, it's technically too early to call this one for the good guys, but read this brief folks (Facebook–Government Brief). I’m convinced. And I have a very hard time believing that SCOTUS will ignore the Government’s position on the intended narrow reach of a federal statute.

I wonder whether Mr. Duguid himselfand his counselmight start to think about simply laying down their weapons at this point. You’re on the wrong side of this thing, guys. The TCPA was not designed to do what you thought it was. Accept it and move on.

Let’s discuss policy to the policymakers, not to SCOTUS. That’s not where you want to be with this Court and you know it. (Big picture guys.) It’s in everyone’s best interest to get this statute cleaned up but that has to start on the Hill.

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