[00:00:02] Speaker 00:
Place number 15-1211 at L. ACA International Petitioner versus Federal Communications Commission at L. Mr. Dvorci for Petitioners ACA International at L. Mr. Wiener for Petitioner of Rite Aid and Mr. Novick for a Respondent.

[00:00:23] Speaker 02:
Please.

[00:00:25] Speaker 02:
Good morning.

[00:00:25] Speaker 02:
May it please the court?

[00:00:26] Speaker 02:
I'm Shai Voretsky with Jones Day representing petitioners.

[00:00:29] Speaker 02:
With the court's permission, I'd like to reserve two minutes for rebuttal.

[00:00:33] Speaker 02:
Sure.

[00:00:33] Speaker 02:
Congress restricted the use of particular equipment, automatic telephone dialing systems, to solve a specific problem prevalent in 1991.

[00:00:41] Speaker 02:
Dialers that generated and called random or sequential numbers reached and often tied up specialized lines like hospital rooms, police stations, and cellular phones.

[00:00:50] Speaker 02:
That caused public safety concerns, reached numbers that were otherwise unlisted, and knocked out entire cellular networks.

[00:00:56] Speaker 02:
Congress addressed that unique threat by banning unconsented calls to these specialized lines if made using an ATDS.

[00:01:03] Speaker 02:
At the same time, Congress passed other provisions of the TCPA to address the problem of unwanted calls generally.

[00:01:10] Speaker 02:
Congress banned pre-recorded or artificial voice calls without consent to all lines, residential and wireless.

[00:01:16] Speaker 02:
Likewise, Congress allowed consumers to sign up for a do not call registry to prevent other unwanted calls to residential and wireless lines.

[00:01:24] Speaker 02:
The ATDS provision thus plays a particular role solving a particular problem in a broader statutory scheme.

[00:01:31] Speaker 02:
It does not ban valuable targeted communications made with equipment not capable of generating and calling random or sequential numbers.

[00:01:40] Speaker 02:
Anything from political calls or surveys by a live person to text messages about payment deadlines or a taxi that's arriving.

[00:01:48] Speaker 03:
Can I start you off on the question about capacity?

[00:01:54] Speaker 03:
Part of your submission is that the Commission's understanding of capacity is far too sweeping because it would envelop every smartphone, basically, because any smartphone can download an app that would spit out randomly generated or sequentially generated numbers, and so it sweeps too broadly.

[00:02:11] Speaker 03:
My question is this.

[00:02:14] Speaker 03:
Just with respect to the capacity part of the statute, if there were a smartphone or other device that, in fact, had downloaded that kind of app,

[00:02:21] Speaker 03:
so that it has that functionality within it, would you agree that at least as to that, that the capacity part of the statute is satisfied?

[00:02:29] Speaker 02:
Yes.

[00:02:31] Speaker 02:
Okay.

[00:02:31] Speaker 02:
Because that device would have the present ability to perform the functions that constitute an ATDS.

[00:02:40] Speaker 03:
So in your view, there's a meaningful distinction, even if, as everybody seems to acknowledge, downloading an app is a pretty trivial exercise.

[00:02:52] Speaker 03:
There's a meaningful distinction under the statute between having a smartphone that's capable of downloading the app with the push of a button and having a smartphone as to which the user has already pushed the button and downloaded the app.

[00:03:07] Speaker 02:
Your Honor, there's a meaningful distinction precisely because it's so easy to download the app.

[00:03:12] Speaker 02:
Because it's so easy to download the app, if you don't draw the line at present ability, then every smartphone and for that matter every computerized device that existed in 1991 would be an ATDS because all of those devices could generate random or sequential numbers to be called and dialed.

[00:03:31] Speaker 02:
Congress did not, the text of the statute that Congress passed does not ban all computerized dialing.

[00:03:38] Speaker 02:
Surely doesn't ban all smartphones.

[00:03:40] Speaker 02:
Congress, again, was targeting a particular problem, and that's why it used the language, using a random or sequential number generator.

[00:03:46] Speaker 03:
In terms of the functions that an ATDS has to be able to- In terms of addressing the particular problem, so I'm not denying the force of your submission, but in terms of targeting a particular problem,

[00:03:59] Speaker 03:
You would have to assume that Congress thought that the problem would be sufficiently in play when the smartphone has the app downloaded, but not sufficiently in play when the smartphone has yet to have the app downloaded, even though it only takes a push of a button to do that.

[00:04:17] Speaker 02:
So there are a couple of reasons why Congress might have targeted equipment rather than just targeting the practice, if that's what your honor is getting at.

[00:04:27] Speaker 02:
One is simply as a matter of proof.

[00:04:29] Speaker 02:
It can be easier for plaintiffs to prove how a particular device was configured than how it was actually used at a given moment.

[00:04:37] Speaker 02:
Two, one way to reduce a particular kind of conduct or behavior is to prohibit the equipment that facilitates engaging in that behavior.

[00:04:47] Speaker 02:
If you want to reduce murders, some people would say the way to do that is to ban guns.

[00:04:52] Speaker 02:
That's what Congress was doing, but it wasn't through a statute that specifically talks about random sequential number generation.

[00:04:59] Speaker 02:
and that responds to a problem having to do with random or sequential number generation.

[00:05:03] Speaker 02:
It wasn't, by doing that, banning all devices.

[00:05:07] Speaker 02:
The ease of downloading the app onto the smartphone is precisely what proves why it has to be present capacity, because it would be just as easy as with the smartphone to program any 1991 computer, any cordless phone, any office phone, basically anything with a chip to count sequential numbers and to dial.

[00:05:27] Speaker 02:
And so, again, in terms of the functions that an ATDS has to perform, the text of it is quite clear.

[00:05:34] Speaker 02:
It has to be able to use a random or sequential number generator to store or produce numbers to be called and dial those numbers, and it has to be able to do so automatically.

[00:05:44] Speaker 02:
That is very precise, carefully calibrated language that Congress passed.

[00:06:00] Speaker 05:
using a device that only has the potential and not the current capacity to robocall, whether it's there or not.

[00:06:08] Speaker 05:
It's a non-robocall.

[00:06:11] Speaker 02:
Let me just be clear on what you mean by robocall.

[00:06:13] Speaker 05:
The commission uses robo.

[00:06:15] Speaker 05:
I understand that there's a final predictive or not.

[00:06:20] Speaker 05:
Let's just assume it's a robo.

[00:06:25] Speaker 05:
Robocall is a commission as defined.

[00:06:28] Speaker 02:
um, non robo call.

[00:06:30] Speaker 05:
They have not made any of those calls that the statute is concerned with.

[00:06:37] Speaker 05:
But this device has the potential to do it.

[00:06:43] Speaker 02:
If by potential what you mean is that it would require a modification, either a software program to be downloaded or a hardware modification to it.

[00:06:52] Speaker 05:
Well, let's do it further.

[00:06:53] Speaker 05:
Let's say it has that capacity on there, but that's not the way it was used.

[00:06:57] Speaker 02:
Oh, if it is presently able to perform the functions of an autodial, a random sequential number generation, and that's not used, then that goes back to Judge Srinivasan's earlier question about the smartphone that has the app downloaded.

[00:07:10] Speaker 02:
That is an ATDS under our view.

[00:07:12] Speaker 05:
Yeah, but wait, wait, wait.

[00:07:14] Speaker 05:
I want to try and follow this through now.

[00:07:16] Speaker 05:
Is that a violation?

[00:07:18] Speaker 02:
No, I'm sorry.

[00:07:19] Speaker 05:
If you use that device, you use the device, but you do not robocall.

[00:07:24] Speaker 02:
Use the device, but you don't use the capacity.

[00:07:27] Speaker 02:
Yes.

[00:07:27] Speaker 02:
If you use Judge Srinivasan's smartphone with the app downloaded on it without consent, you have used an ATDS and that is a violation.

[00:07:36] Speaker 05:
Where does that say that in the statute?

[00:07:37] Speaker 05:
That's not what the statute says.

[00:07:39] Speaker 05:
The statute says

[00:07:43] Speaker 05:
I'm not even getting your concession.

[00:07:47] Speaker 05:
This statute doesn't talk about you're violating the law if you have a device.

[00:07:54] Speaker 05:
It talks about prohibitions to make any call using an automatic telephone dialing system.

[00:08:02] Speaker 05:
The prohibition is to use the system, not merely to have equipment that has the system in it or available to it or have it.

[00:08:15] Speaker 05:
away what I thought was the strongest part in the case.

[00:08:17] Speaker 05:
It's not what the statute says.

[00:08:19] Speaker 05:
You all are fighting so much over the definition, you forget to go back and look at what the prohibition is.

[00:08:24] Speaker 05:
The prohibition is what we're concerned about.

[00:08:27] Speaker 02:
So I'm perfectly happy to have that rule from the courts.

[00:08:31] Speaker 05:
I'm not understanding how you get there.

[00:08:34] Speaker 02:
I think the way you would get there is the statute prohibits using the device, but the device is a device if it has the present ability.

[00:08:44] Speaker 05:
No, no, no, no, it does not.

[00:08:45] Speaker 05:
The statute says the violation to make any call using any automatic telephone dialing system.

[00:08:52] Speaker 05:
That's the violation.

[00:08:54] Speaker 05:
So it is not a violation to have in your hand or on your desk or in your room equipment that could be used for automatic dialing.

[00:09:03] Speaker 05:
That's not what the statute says.

[00:09:05] Speaker 02:
So I'm perfectly happy to have the court rule on that ground.

[00:09:08] Speaker 02:
I don't want to concede that away if the court is inclined to rule in that way.

[00:09:12] Speaker 02:
You don't have to go that far, though, because the key point is that the device surely is not an ATDS if not only is it not used as an ATDS, but as presently configured, it can't even perform the functions in question.

[00:09:27] Speaker 03:
Because I thought your view and everybody's view, as I understand it, is that

[00:09:31] Speaker 03:
a call can be made using an ATDS as long as the ATDS has the capacity.

[00:09:37] Speaker 03:
But the ATDS – suppose an ATDS has two capacities.

[00:09:40] Speaker 03:
It has the capacity to make automatic calls, and it has the capacity for a person to actually sit there and dial a number.

[00:09:46] Speaker 03:
Even if the person is sitting there and dialing the number and making a call, the ATDS has the capacity to be used in a fully automated fashion.

[00:09:55] Speaker 03:
And I thought your reading of the statute was that

[00:09:58] Speaker 03:
The call is being made using an ATDS that has a capacity to do it in an automated fashion, even if the way it's being used in this instance is in a manual fashion.

[00:10:08] Speaker 05:
That's a violation, you said, to make that call.

[00:10:11] Speaker 02:
I think that's right.

[00:10:14] Speaker 02:
However, that only... That makes no sense.

[00:10:16] Speaker 05:
That isn't what Congress was going after.

[00:10:19] Speaker 05:
I'm holding something in my hand.

[00:10:22] Speaker 05:
that has a capacity, whether I downloaded it or not, it has a capacity, it's for real.

[00:10:26] Speaker 05:
But I'm not intending to make a robocall.

[00:10:29] Speaker 05:
I want to call my sister.

[00:10:31] Speaker 05:
Non-robocall.

[00:10:32] Speaker 05:
And I'm violating the statute if I don't have her consent?

[00:10:36] Speaker 02:
That makes no sense.

[00:10:38] Speaker 05:
That's why you're all reading it, and that's not what the statute says.

[00:10:42] Speaker 02:
I think Your Honor's frustration with that position only goes to show that even under the reading of the statute that we have been discussing, the statute already sweeps more broadly than is necessary.

[00:10:57] Speaker 02:
And it does so, by the way, in an area that regulates speech.

[00:11:00] Speaker 02:
It already is sweeping more broadly than is necessary to address the problem that Congress was trying to solve.

[00:11:06] Speaker 03:
Shortly, Congress did not pass a statute.

[00:11:19] Speaker 02:
Yeah, yeah, the Judge Edwards interpretation of the statute states.

[00:11:22] Speaker 02:
That interpretation, that argument you will find all over the record.

[00:11:27] Speaker 02:
I am not sure, may be able to check that and get back to you on rebuttal.

[00:11:31] Speaker 02:
I'm not sure, though, if anybody pressed the specific statutory point that Judge Edwards is making.

[00:11:37] Speaker 07:
Just to be clear, you mean that many people have argued that it's overbroad and

[00:11:43] Speaker 07:
unreasonable to have the capacity be dormant and have the call nonetheless be subject to penalty.

[00:11:51] Speaker 07:
That's been pressed as an argument for narrow construction of the other part.

[00:11:57] Speaker 07:
But have people said, well, use means using that capacity.

[00:12:02] Speaker 02:
I'm not sure of the answer to that question.

[00:12:06] Speaker 02:
There's a lot more that I'm happy to talk about with ATDS.

[00:12:10] Speaker 02:
I do have a couple other issues.

[00:12:13] Speaker 02:
We are aware of that.

[00:12:14] Speaker 07:
I'd like to hear, the way you framed it obviously is as an advocate, but as I take it the FCC reads the

[00:12:24] Speaker 07:
the definition of ATDS to cover sort of contemporary robocall equipment, for want of a better term.

[00:12:36] Speaker 07:
And they read that they parse the language because they say, well, if it stores telephone numbers to be called and calls them using a sequential number generator to sequentially dial those numbers, in other words,

[00:12:51] Speaker 07:
you know, stored number question.

[00:12:54] Speaker 07:
And you take issue with that.

[00:12:56] Speaker 07:
And I'd just like to hear about your interpretation.

[00:13:01] Speaker 02:
So our interpretation is that the statute requires that the equipment be able to use a random or sequential number generator to store or produce numbers to be called.

[00:13:13] Speaker 02:
The Commission, first of all, in its order and in its brief, doesn't settle on any single interpretation of what these functions are and what this language means, and that alone is telling about their critique of our position.

[00:13:28] Speaker 07:
But I think they think they've done it in a rulemaking that's pretty extensive, or in an order, and that they're just sticking with that.

[00:13:37] Speaker 02:
First of all, in this latest order, they purport to be clarifying the earlier ones, so they're not entirely sticking with it.

[00:13:43] Speaker 02:
But even in the earlier ones, they advance several different interpretations of what this language means.

[00:13:49] Speaker 02:
In some places within this order and in the earlier ones, they say that this language simply requires the ability to store or produce numbers, full stop.

[00:13:58] Speaker 02:
That would be any phone with a contact list and any computer today or in 1991.

[00:14:04] Speaker 02:
In other places, they say it's the ability to store or produce numbers and then dial them randomly sequentially or from a database.

[00:14:12] Speaker 02:
Dialing randomly or sequentially, dialing a set list of numbers in a random or sequential order is not using a random or sequential number generator, which is what the statute applies.

[00:14:22] Speaker 03:
Can I ask you about that interpretation in particular?

[00:14:24] Speaker 03:
Because I think this is what Judge Pell was getting at.

[00:14:27] Speaker 03:
I understand what you're saying, that if you take a database of numbers that exists in the world, let's say some other entity creates a database of numbers, targeted customers, and then the equipment that we're talking about borrows that list, incorporates that list, and then calls those numbers, that database was not created randomly or sequentially.

[00:14:48] Speaker 03:
It was created intelligently because somebody did the work to figure out who the targeted list of customers are.

[00:14:53] Speaker 03:
But if that database gets transported into the equipment and then the equipment chooses from that list randomly or sequentially, then one interpretation, I'm not saying this is necessarily the right interpretation, but one interpretation potentially is that

[00:15:09] Speaker 03:
The system is generating random or sequential numbers from another list that doesn't consist of randomly or sequentially generated numbers.

[00:15:19] Speaker 03:
So the random or sequential number generation is occurring at the second stage when you're figuring out which numbers you're going to call.

[00:15:26] Speaker 02:
So there's several problems with that.

[00:15:28] Speaker 02:
One is when you're talking about generation, you're talking about creating numbers at that point, not just choosing numbers from a list.

[00:15:37] Speaker 02:
You're talking about actually generating the numbers.

[00:15:39] Speaker 07:
Second of all.

[00:15:40] Speaker 07:
Is that necessary?

[00:15:42] Speaker 07:
It's a bit of an opaque phrase, but your position has to be that that's the only reasonable interpretation.

[00:15:49] Speaker 07:
And I can certainly see that generating a number might be to serve it up.

[00:15:54] Speaker 07:
to the person who's, or the machinery that's doing the calls, rather than put the digits together.

[00:15:58] Speaker 07:
The number might be the telephone number.

[00:16:01] Speaker 02:
So, there are a few reasons why I think that's the only interpretation.

[00:16:05] Speaker 02:
One, I don't think that's a reasonable understanding of what generating is.

[00:16:09] Speaker 07:
That's your task, is you have to show that it's clear and it's the only interpretation.

[00:16:13] Speaker 02:
Well, no, I do think that it's the only interpretation, but even if there are multiple potential interpretations, the Commission has not even chosen an interpretation that this Court could potentially defer to.

[00:16:26] Speaker 02:
It's been all over the map on what this language means.

[00:16:29] Speaker 02:
It has not settled on a particular interpretation.

[00:16:31] Speaker 02:
But to go back to your earlier question, I do think that this is the only way to read the statute.

[00:16:36] Speaker 02:
First of all, because generation has to do with creating numbers.

[00:16:39] Speaker 02:
Second of all, if Congress had wanted to simply refer to an order of dialing, it could have said to be called randomly or sequentially.

[00:16:49] Speaker 02:
It would not have said using a random or sequential generator.

[00:16:53] Speaker 02:
That is an awfully odd way to refer to an order of dialing.

[00:16:58] Speaker 02:
Third of all, it makes no sense grammatically to put using a random or sequential number generator separated by a comma after store or produce telephone numbers to be called if it's only modifying called.

[00:17:13] Speaker 02:
The numbers have to be stored or produced using the random or sequential number generator grammatically.

[00:17:19] Speaker 02:
And lastly, and I think this is an overarching point here,

[00:17:23] Speaker 02:
What Congress was motivated by with this ATDS provision was getting at particular types of dialers that did generate random numbers and large blocks of sequential numbers and use those to make calls causing particular problems.

[00:17:39] Speaker 02:
The interpretation that this language simply refers to calling from a list sweeps far broader than any problem that Congress was trying to solve and would sweep in

[00:17:50] Speaker 02:
virtually every calling device, both today and in 1991.

[00:17:54] Speaker 03:
If the database that's transposed in is all numbers in New York City, that's a database of numbers.

[00:18:02] Speaker 03:
And then the functionality of the device that we're talking about can choose from those numbers randomly or sequentially.

[00:18:10] Speaker 03:
You would still say that the statute doesn't cover that because the numbers that have been transposed in is a database that's a subset of all 10-digit numbers in the world.

[00:18:21] Speaker 02:
I would say that the statute doesn't cover it because the equipment, the potential ATDS equipment, is not doing anything to generate random or sequential numbers.

[00:18:32] Speaker 03:
Except it's generating random or sequential numbers from the list of on-phone numbers in New York.

[00:18:35] Speaker 02:
It's generating a calling sequence.

[00:18:38] Speaker 02:
Right.

[00:18:38] Speaker 02:
But it's not generating numbers to be called.

[00:18:42] Speaker 07:
I know you're resting a lot on the comma, but there's a problem with the way you read it because I can't really make sense of storing

[00:18:51] Speaker 07:
telephone numbers using a random or sequential number generator, which is part of the implication of your reading, right, that we have to think that that makes sense.

[00:19:01] Speaker 07:
numbers to be called using random numbers?

[00:19:03] Speaker 02:
So I think Congress was getting at potentially two types of equipment.

[00:19:07] Speaker 02:
One type of equipment that produces a random number and immediately dials it, and another that uses the random or sequential number generator to produce a list of random and sequential numbers that are stored and later dialed.

[00:19:22] Speaker 02:
There's a temporal difference.

[00:19:24] Speaker 03:
So I didn't read that interpretation in your brief, and maybe you did have it in there, but it sounds like that interpretation is

[00:19:30] Speaker 03:
Store or produce?

[00:19:31] Speaker 03:
Produce means produce.

[00:19:33] Speaker 03:
Store means produce and then store.

[00:19:37] Speaker 03:
Is that, that sounds like what you're saying.

[00:19:40] Speaker 03:
So store is not mutually exclusive of produce, it's just that it's doing something more than produce, which is first producing and then it's also storing.

[00:19:46] Speaker 03:
That's right.

[00:19:47] Speaker 03:
That's the way you would, you think that's the construction of the building.

[00:19:50] Speaker 02:
I think it's admittedly a little bit awkward to refer to store something using a random sequential number generator, but I think that's the only reading that this statute will bear because otherwise this

[00:20:01] Speaker 02:
carefully calibrated statute to deal with random and sequential number generators using language about random and sequential number generation would cover every computerized calling device.

[00:20:12] Speaker 07:
And if Congress had simply wanted... Only if it's done without the human intervention to decide which numbers to call, if it's a random or sequential serving up of those numbers to be called.

[00:20:25] Speaker 07:
So it's not just me thinking out of my contacts list to call my mom.

[00:20:31] Speaker 02:
Certainly I do think that the human intervention element is a requirement of an ATDS, and that's another aspect of the functions of an ATDS on which the Commission hasn't settled on a single position.

[00:20:49] Speaker 02:
So I agree with you that the functions of an ATDS have to be performed automatically without human intervention.

[00:20:57] Speaker 02:
But I think even setting that aside, that it's not a plausible reading of a statute that talks about using a random or sequential number generator to read that to refer to a sequence of dialing, particularly in light of the context of the problem that Congress was trying to solve.

[00:21:13] Speaker 03:
Again, if Congress- Even if it's not, it doesn't have to be a sequence of dialing because it could be that

[00:21:18] Speaker 03:
Even under your interpretation of store, you've taken a given list of numbers, and then it chooses the device, chooses numbers that are going to be called, and then it stores the list for somebody's got to push a button later to initiate the call sequence.

[00:21:36] Speaker 03:
So it's not doing the dialing right away, but it's storing a list of numbers that are randomly or sequentially generated from a list that already exists.

[00:21:46] Speaker 02:
So, first of all, I think what Your Honor has just described is a sequence of dialing.

[00:21:52] Speaker 02:
It's taking a list and it's choosing the order in which those numbers will be called.

[00:21:58] Speaker 02:
But again, why would it make sense for Congress to have passed that statute?

[00:22:02] Speaker 02:
That statute that you've just described might make sense if Congress were just concerned with reducing the number of phone calls generally.

[00:22:10] Speaker 02:
That's not what the ATDS provision was doing.

[00:22:12] Speaker 02:
If that's what Congress had been concerned with, it would have banned ATDS calls to residential lines, which were at the time much more prevalent than wireless lines.

[00:22:21] Speaker 02:
if all Congress wanted to do was simply to reduce calls that were somehow made with computer assistance and to reduce the number of calls that way.

[00:22:30] Speaker 02:
Congress did ban pre-recorded and artificial voice calls to residential lines.

[00:22:35] Speaker 02:
Those were considered particularly troubling kinds of calls.

[00:22:38] Speaker 02:
Congress created a do-not-call registry for people who did not want to receive unwanted calls generally.

[00:22:44] Speaker 02:
But this ATDS provision simply is not about that.

[00:22:47] Speaker 02:
It's about the problem of random or sequential number generation.

[00:22:49] Speaker 02:
and to transform this provision to function in the way that Your Honor is describing both is not a textually sound reading and fundamentally changes and expands the purpose of what Congress was trying to do.

[00:23:03] Speaker 03:
Can I ask you this?

[00:23:04] Speaker 03:
Is the interpretation that you put forward

[00:23:08] Speaker 03:
that doesn't seem to be the interpretation that Commissioner Pai had in his dissenting opinion, which you otherwise rely on to effect in your briefing, but he seemed to have accepted the possibility that with respect to functionality, you can take an existing list of numbers that's generated elsewhere, bring them in, and then randomly or sequentially dial from that list of numbers, and it would still be something prohibited by the statute.

[00:23:34] Speaker 02:
So I don't think he did, because if you do that, then that is simply making, that is banning all dialing from a list.

[00:23:43] Speaker 02:
And every smartphone would have the capacity to do that, and the... If the app were downloaded.

[00:23:50] Speaker 03:
If the app, well, under the commission's approach... I think Commissioner Pye rejects the commission's approach to capacity.

[00:23:57] Speaker 03:
But what I'm asking about is with respect to the second half of the argument, which is functionality, it seemed to me that he was saying that there would be some devices that don't have the capacity to do random or sequential dialing.

[00:24:10] Speaker 03:
And I know your argument about separating the dialing part from the generation of the list part, but as I understood his position, and it's on 1260 of the joint appendix, what he's focused on is whether the equipment has the capacity to dial random or sequential numbers.

[00:24:28] Speaker 03:
And as I understood that passage, it seemed to be indicating that

[00:24:32] Speaker 03:
First of all, predictive dialing is something that the statute does cover.

[00:24:36] Speaker 03:
It's not automatically out because the list is generated intelligently through something other than a random or sequential generation function.

[00:24:45] Speaker 03:
But he seemed to think that predictive dialing and other dialing that involves a machine that has the capacity to choose the numbers randomly or sequentially is still something that the statute would bar.

[00:24:56] Speaker 03:
But I might be misunderstanding what he did.

[00:24:58] Speaker 02:
So that's not how I read his opinion.

[00:25:01] Speaker 02:
And the key language that I see on 1260, as he's referring to the predictive dialer rulings, he says the key issue in each decision was that the equipment had the capacity to dial random or sequential numbers.

[00:25:16] Speaker 02:
Nothing about that is talking about choosing numbers from a list in sequential order.

[00:25:22] Speaker 03:
That's after a part where he seems to have ratified the FCC's prior understanding to the effect that predictive dialing is the capacity to store or produce numbers and dial those numbers at random in sequential order or from a database of numbers.

[00:25:40] Speaker 03:
And so if you're talking about it, I think you part ways with him because you don't think that a database of numbers

[00:25:46] Speaker 03:
comes within the statute at all, because the database of numbers by hypothesis is something that wasn't randomly or sequentially made.

[00:25:52] Speaker 03:
It was a database that was intelligently made.

[00:25:54] Speaker 02:
Your Honor, I think this only goes to the confusion about the earlier 2003 and 2008 orders and what exactly they were deciding.

[00:26:03] Speaker 02:
If you look at those orders, just as if you look at this order, you will see several different descriptions of what a predictive dialer does and why it may or may not be an ATDS.

[00:26:15] Speaker 02:
And that's precisely what led parties to seek clarification.

[00:26:19] Speaker 02:
Now, in this paragraph that we're talking about, Commissioner Pai did not, his language here is tracking the confusion of the earlier orders, but the problem with the earlier orders is that they declare the predictive dialers are generally ATDSs, but don't explain why.

[00:26:37] Speaker 02:
And in describing the functions, they give several different accounts of the functions.

[00:26:41] Speaker 02:
And because of that,

[00:26:43] Speaker 02:
petitioners and commenters have no idea whether other types of equipment that aren't predictive dialers are covered or not because the Commission has never been clear on what the functions of an ATDS are.

[00:26:55] Speaker 02:
The only function that I think this statute can be talking about is the function of using a random or sequential number generator to actually create the numbers that are then immediately dialed or stored for later dialing.

[00:27:09] Speaker 03:
So that could be one interpretation.

[00:27:11] Speaker 03:
I know you want to move on and you'll have an opportunity to do that.

[00:27:15] Speaker 03:
But one interpretation would be that the statute covers a database of numbers from which the equipment makes calls.

[00:27:26] Speaker 03:
But that database has to have, that database of numbers has to have been created using equipment that had the capacity to generate random or sequential numbers.

[00:27:37] Speaker 02:
So a couple of issues with that interpretation.

[00:27:41] Speaker 02:
First of all, the definition of ATDS is talking about equipment.

[00:27:46] Speaker 02:
It is an awfully strained interpretation when you're looking at a present piece of equipment to say we're also going to include in that the functions or the capacities of some other equipment that was used in some other place and time in order to generate a list.

[00:28:05] Speaker 02:
Second of all, even if you were to read it that way, though,

[00:28:08] Speaker 02:
That does not provide any justification for reading an ATDS to include the sorts of communications that petitioners here actually make.

[00:28:18] Speaker 02:
At the Commission itself, recognized in 2003, the callers almost completely are no longer using random or sequential number generations or random or sequential lists.

[00:28:29] Speaker 02:
There's no reason to.

[00:28:30] Speaker 02:
Callers nowadays and texters are engaged in targeted communications.

[00:28:35] Speaker 02:
And so your view is that this provision of the TCPA is a dead letter.

[00:28:40] Speaker 02:
It's not a dead letter.

[00:28:41] Speaker 02:
It's a smashing success.

[00:28:43] Speaker 02:
But it's obsolete.

[00:28:45] Speaker 02:
It's worked itself out of business.

[00:28:50] Speaker 02:
It has solved the problem that Congress set out to solve, which was the problem of people using random sequential number generators to mass dial.

[00:28:58] Speaker 02:
Victim of its own success.

[00:28:59] Speaker 02:
Got it.

[00:29:00] Speaker 05:
What do you do with the language in the statute?

[00:29:04] Speaker 05:
where Congress gives the Commission great authority to think about things as they arise, new equipment, new issues.

[00:29:18] Speaker 05:
The language doesn't make a lot of sense.

[00:29:20] Speaker 05:
We all seem to agree with that.

[00:29:21] Speaker 05:
We're struggling with it.

[00:29:22] Speaker 05:
Let's assume you're right.

[00:29:23] Speaker 05:
It's a dead letter now.

[00:29:24] Speaker 05:
But does that mean the Commission has no authority to continue to deal with the issues that are?

[00:29:29] Speaker 02:
The Commission has no authority to solve a separate problem that it's identified, which is it apparently simply wants to reduce calls and texts, including informational texts and others that people actually want to receive.

[00:29:43] Speaker 02:
The Commission has no authority to solve a different problem than the problem that Congress set out to solve.

[00:29:48] Speaker 02:
When Congress was trying to solve the problem, to the extent it saw one, of particular types of unwanted calls generally, it did that through the Do Not Call list and through the prohibition on pre-recorded and automated voice calls to all lines.

[00:30:03] Speaker 02:
The Commission can't now take this targeted provision, and in the name of updating the statute, rewrite it to solve a completely different problem, and rewrite it to include virtually all modern calling devices.

[00:30:16] Speaker 02:
Again, the communications that are issued here are of the sort that Congress specifically wanted to protect.

[00:30:22] Speaker 02:
Congress wanted to protect legitimate business communications.

[00:30:26] Speaker 02:
Congress wanted to protect the kinds of political speech that can be at issue here, the kinds of notifications from schools.

[00:30:32] Speaker 02:
This is not – the speech that the commission sweeps into this order, into the ATDS definition, is not what Congress was going after in the ATDS provision.

[00:30:53] Speaker 05:
authority that the commission has been given to keep moving along as technology changes.

[00:30:59] Speaker 05:
The simple response to you is this portion may be a dead letter, but it does not nullify the concern that

[00:31:18] Speaker 05:
I have to keep looking back at what's being prohibited.

[00:31:21] Speaker 05:
What's being prohibited is an answer.

[00:31:23] Speaker 05:
That is the automatic dialing.

[00:31:24] Speaker 05:
It says any automatic dialing system.

[00:31:27] Speaker 02:
It says any automatic telephone dialing system, but ATDS is then a defined term.

[00:31:31] Speaker 05:
I totally understand the struggle with going then to the

[00:31:43] Speaker 02:
But the commission doesn't have that kind of free-ranging authority.

[00:31:46] Speaker 02:
Pardon me?

[00:31:51] Speaker 02:
The commission only has authority with respect to the statutory definition that Congress has given.

[00:31:56] Speaker 02:
And while I understand Your Honor's frustration, I think the frustration simply reflects that this is already an over-inclusive statute.

[00:32:04] Speaker 02:
This is already a statute that bans more conduct than is necessary

[00:32:09] Speaker 02:
to reach the very specific problem that Congress was trying to solve.

[00:32:13] Speaker 02:
This is surely not a statute that allows the Commission to come up with rules that sweep in all modern calling devices and all calling devices that existed in 1991 when Congress could have done that if it wanted to and did specifically restrict automated calls of other sorts, specifically artificial and pre-recorded voice calls, to residential lines and had to do not call rich.

[00:32:35] Speaker 05:
It's not as big a deal as it sounds when you say it.

[00:32:42] Speaker 05:
the only thing Congress is prohibiting is the use of the automatic dialing.

[00:32:47] Speaker 05:
See, that's where your initial concession is bizarre, because it wouldn't much matter what the device is.

[00:32:54] Speaker 05:
The prohibition is you can't use an automatic dialing system in the circumstances indicated.

[00:33:00] Speaker 05:
And unless the complainant can prove that, the complainant loses.

[00:33:05] Speaker 02:
So it would be a very helpful rule if the court were to hold that the only thing this provision prohibits is the use of an ATDS as a random or sequential dialer.

[00:33:17] Speaker 03:
I take it from your perspective, the dilemma is if you just took the words automatic telephone dialing system and didn't have a definition at all, then the commission would have a lot of authority to deal with a lot of things involving dialing, which it has definitely done.

[00:33:34] Speaker 03:
But your view is that that would be fine if the statute didn't define automatic telephone dialing system.

[00:33:42] Speaker 03:
But it did define automatic telephone dialing system.

[00:33:45] Speaker 03:
And it defined dialing system in a way that has a lot to do with things that have little to do with dialing.

[00:33:51] Speaker 03:
It has to do with the generation of the list of numbers that are ultimately dialed.

[00:33:55] Speaker 02:
If you write 30 words out of the statute, the commission would have a lot of discretion to do what it wants.

[00:34:00] Speaker 02:
But those 30 words are there.

[00:34:02] Speaker 02:
The definition.

[00:34:03] Speaker 07:
I don't remember what your response is, if any, to their congressional ratification points.

[00:34:10] Speaker 07:
They argue that Congress has understood the statute more the way they see it than the way you see it.

[00:34:17] Speaker 02:
So they do argue that.

[00:34:19] Speaker 02:
First of all,

[00:34:20] Speaker 02:
The Commission's interpretation of this statute has never been clear and there was nothing for Congress to ratify.

[00:34:26] Speaker 02:
What exactly – which of the inconsistent statements that the Commission has made over the years is Congress purportedly ratifying?

[00:34:33] Speaker 02:
Second of all, with respect to each of the amendments that the Commission raises in its brief,

[00:34:37] Speaker 02:
The 2015 amendment, first of all, does do work under our reading of the statute as well, because it exempts artificial and pre-recorded voice calls when made to collect the government debt.

[00:34:49] Speaker 02:
That is something that debt collectors might well do.

[00:34:52] Speaker 02:
And so the amendment has force and effect as a result of that.

[00:34:57] Speaker 02:
Moreover, the 2015 amendment was passed while this appeal was pending.

[00:35:02] Speaker 02:
And Congress was simply saying, look, whatever the outcome of this appeal, the government's ox is not going to be gored here.

[00:35:08] Speaker 02:
The government is going to be free to do what it wants.

[00:35:10] Speaker 02:
But that's not ratifying any sort of a settled understanding of the statute.

[00:35:15] Speaker 07:
Maybe you answered this, and I just didn't catch it.

[00:35:17] Speaker 07:
But their core point is that debt collection involves

[00:35:21] Speaker 07:
a stored chosen list, not a list that's randomly generated.

[00:35:27] Speaker 07:
And yet Congress seemed to think that it was covered by this statute.

[00:35:31] Speaker 07:
And so

[00:35:35] Speaker 07:
That's the mileage they're getting out of that.

[00:35:37] Speaker 02:
But debt collection can also often involve artificial and pre-recorded voice calls.

[00:35:43] Speaker 02:
And making those types of calls, even from a list, would be prohibited under the TCPA, if not for this amendment.

[00:35:52] Speaker 02:
So that is work that this amendment is doing, irrespective of the issues that we're talking about here today about the functions and capacity of APS.

[00:36:00] Speaker 07:
And to the extent that this amendment also covers non-pre-recorded, then

[00:36:04] Speaker 02:
They have a toehold.

[00:36:07] Speaker 02:
To the extent it also covers non-pre-recorded calls, then Congress was just making sure that whatever the outcome of this appeal, whatever the ATDS provision is ultimately read to mean by a court, Congress is not, the government's not going to be at risk of TCPA liability.

[00:36:21] Speaker 02:
Government debt collectors can do what they want.

[00:36:25] Speaker 02:
All right, should we go to called party?

[00:36:29] Speaker 07:
And the 2012?

[00:36:31] Speaker 07:
Robocall.

[00:36:32] Speaker 02:
So the 2012 order doesn't specifically refer to ATDSs.

[00:36:36] Speaker 02:
That one does.

[00:36:37] Speaker 02:
It doesn't define automatic dialing.

[00:36:39] Speaker 02:
It doesn't define robocall equipment.

[00:36:41] Speaker 02:
And so we don't know what Congress could have been ratifying there.

[00:36:46] Speaker 02:
And again, as an overarching point, there's no established position of the commission here to ratify.

[00:36:53] Speaker 02:
Lastly, with respect to the 2011 ratification argument that they make,

[00:36:57] Speaker 02:
You can't infer anything from congressional inaction in this context, especially where there are many different things that could have killed that particular bill.

[00:37:05] Speaker 02:
It would have covered only equipment that uses a random or sequential number generator, the sort of statute that Judge Edwards might think would be more sensible.

[00:37:12] Speaker 02:
It would have preempted state regulation.

[00:37:15] Speaker 02:
There are all sorts of things proposed in that bill, and the fact that it wasn't enacted doesn't tell you anything about how to read ATDS in the statute that's before you.

[00:37:26] Speaker 02:
So maybe we can go to called party.

[00:37:29] Speaker 02:
So as we were just talking about, the commission has expanded the ATDS definition beyond all bounds.

[00:37:35] Speaker 02:
And at the same time, it's made it impossible for callers to comply with the TCPA by obtaining consent, because it has made consent unreliable.

[00:37:46] Speaker 02:
Called party and prior express consent have to be read together.

[00:37:51] Speaker 02:
That is the only way to give meaning to the consent defense that Congress put into the statute.

[00:37:58] Speaker 02:
Two things follow from that.

[00:38:00] Speaker 02:
First of all, that the commission has read called party in a way that makes it impossible for parties to – for callers to rely on consent, and as a result, that chills valuable communications and raises serious First Amendment questions.

[00:38:14] Speaker 05:
Second of all –

[00:38:16] Speaker 05:
If you have an agreement, are we over that issue that the callers and call persons may agree?

[00:38:24] Speaker 02:
Well, there's no question that callers provide consent.

[00:38:28] Speaker 02:
The problem arises when the number that the caller gave when he or she consented is then reassigned to somebody else.

[00:38:36] Speaker 02:
And the company or the caller reaches that somebody else.

[00:38:40] Speaker 07:
Now, we're talking here about two, we're not talking about

[00:38:45] Speaker 07:
pre-recorded calls.

[00:38:46] Speaker 07:
We're talking about human voices and texts.

[00:38:49] Speaker 02:
Correct.

[00:38:50] Speaker 07:
And so with a human voice, I'd like to hear sort of at a more concrete factual level the problem.

[00:38:56] Speaker 07:
Because with a human voice, if you call and say, hi, is this Mr. Dreske?

[00:39:01] Speaker 07:
And no, actually, this is Mr. Smith.

[00:39:03] Speaker 07:
Mr. Dreske has no longer owns this phone.

[00:39:06] Speaker 07:
Or I don't know who you're talking about.

[00:39:07] Speaker 07:
This is my phone.

[00:39:09] Speaker 07:
Oh, I'm sorry.

[00:39:10] Speaker 07:
And would you like to hear about Wells Fargo's

[00:39:14] Speaker 07:
product and you say, no, take me off the list and done.

[00:39:20] Speaker 02:
Right?

[00:39:21] Speaker 02:
What you've just described is a very normal way of human interaction.

[00:39:25] Speaker 02:
Unfortunately, that's not the world of TCPA lawsuits.

[00:39:29] Speaker 02:
You would of course hope that that is what would happen, that the caller would actually reach somebody as opposed to the call ringing busy or going to an uninformative voicemail or something like that.

[00:39:39] Speaker 02:
And you would then hope that the person who answered the phone, if it's a wrong number, would say, don't call me again.

[00:39:46] Speaker 02:
And if that is how things were to transpire, then under our view, the caller at that point would have actual notice of the reassignment.

[00:39:54] Speaker 02:
And if the caller kept calling that same person, there would be a TCPA violation, assuming that we're using an ATTS.

[00:40:00] Speaker 02:
The problem, though, is that, first of all, there are lots of situations in which callers won't have the opportunity to learn.

[00:40:06] Speaker 02:
And second of all, that's the more concrete that I want to hear.

[00:40:09] Speaker 07:
So you call and you reach a voicemail.

[00:40:12] Speaker 07:
And it says, hi, I'm not home.

[00:40:14] Speaker 07:
Leave me a message.

[00:40:15] Speaker 07:
And you leave a message saying, either you don't leave a message, in which case I assume that's not your one call.

[00:40:20] Speaker 07:
We'll have to hear from them.

[00:40:22] Speaker 03:
That's not your safe high phone.

[00:40:24] Speaker 07:
If you haven't even connected.

[00:40:26] Speaker 03:
Correct.

[00:40:27] Speaker 03:
Because I thought when an answering machine picks up, it is a connection.

[00:40:31] Speaker 02:
Under the commission's view, whatever happens in that one call, it can ring busy.

[00:40:36] Speaker 02:
It can go to a voicemail.

[00:40:37] Speaker 02:
You can talk to a person.

[00:40:39] Speaker 02:
It can be a text that doesn't get a response, which, of course, is going to be the normal text.

[00:40:42] Speaker 07:
That's the one call.

[00:40:45] Speaker 07:
Rings busy, that's the one call.

[00:40:47] Speaker 07:
That's your understanding, but rings busy and there's no connection.

[00:40:52] Speaker 02:
I think that's right.

[00:40:53] Speaker 02:
Even if it answers and the voicemail says, you've reached 555-1212.

[00:40:58] Speaker 07:
So then you say, hi, this is Wells Fargo.

[00:41:02] Speaker 07:
If you want to hear more from us, call back.

[00:41:04] Speaker 07:
And then you mark that.

[00:41:06] Speaker 07:
We don't know if this is consent.

[00:41:07] Speaker 07:
There's a question mark.

[00:41:09] Speaker 07:
No?

[00:41:10] Speaker 07:
And if they want to hear from you, they call you?

[00:41:12] Speaker 02:
First of all, receiving that 555-1212 voicemail does not provide actual or constructive knowledge of the resigning.

[00:41:22] Speaker 07:
I'm agreeing with you on that.

[00:41:23] Speaker 07:
In fact, it raises a question whether you've even reached the correct person.

[00:41:28] Speaker 02:
I don't think it raises the question whether you've reached the correct person when there are lots and lots of voicemail boxes that are set up that way and fair to assume that you have reached the right person.

[00:41:38] Speaker 02:
It doesn't confirm that you have.

[00:41:39] Speaker 02:
It doesn't confirm that you have, and as a result of that, as a result of the Commission's One Call Rule,

[00:41:45] Speaker 02:
Lots of people and businesses have already stopped making the sorts of communications that Congress wanted to protect, because they don't know.

[00:41:53] Speaker 05:
Isn't your principal point, the Commission, as I understand the record, they've essentially conceded that the record shows, in this case, that there are many calls that can be made before there's actual knowledge of reassignment.

[00:42:03] Speaker 02:
Yes.

[00:42:04] Speaker 05:
That's conceded.

[00:42:05] Speaker 05:
And my reading of the record is that they say in response to that, too bad.

[00:42:09] Speaker 05:
The risk falls on you.

[00:42:10] Speaker 05:
That's right.

[00:42:11] Speaker 05:
That's all we're talking about, whether that's permissible or not.

[00:42:13] Speaker 05:
There is no doubt that it takes many calls.

[00:42:16] Speaker 05:
The commission says it takes many calls to answer.

[00:42:24] Speaker 05:
They say that's too bad.

[00:42:26] Speaker 03:
Right.

[00:42:26] Speaker 03:
Well, there's also a question about constructive knowledge.

[00:42:29] Speaker 03:
And I take it that the question is, one question is, texts, I totally get that if you send a text and you get no response, I'm not sure how that's, we'll ask the commission, I'm not sure how that could be deemed constructive knowledge that the number's been reassigned to somebody else.

[00:42:47] Speaker 03:
Because it seems like the default mode a lot of times is gonna be no response.

[00:42:51] Speaker 03:
With a telephone call,

[00:42:54] Speaker 03:
If the machine picks up, the question is, have you received constructive knowledge that the number may no longer be owned by the person who by hypothesis gave expressed consent?

[00:43:08] Speaker 03:
And in my mind, one useful way to think about that is,

[00:43:13] Speaker 03:
as the commission does in the order, whether there's been an effective revocation.

[00:43:17] Speaker 03:
Because even if you're not talking about a situation in which there's been reassignment, I don't think the commission believes that there's been a revocation when you call a number and there's no answer.

[00:43:28] Speaker 03:
That person hasn't revoked.

[00:43:30] Speaker 03:
And if they haven't revoked, then the question from your perspective would be, how does the caller have constructive knowledge that the number might have been reassigned?

[00:43:37] Speaker 03:
Right.

[00:43:38] Speaker 02:
And I think it's helpful to think about what the concept of constructive knowledge is.

[00:43:43] Speaker 02:
The commission is saying you either have actual knowledge after one call, or you are deemed to have actual knowledge from all of the circumstances.

[00:43:52] Speaker 02:
The most that you could be deemed to have, I'm sorry, you are deemed to have constructive knowledge, which has the functional equivalent here of actual knowledge because you have to stop calling.

[00:44:02] Speaker 02:
You have to treat the consent as at that point being null and void.

[00:44:07] Speaker 02:
The most that you can be said is, well, you've called the number that you've been given.

[00:44:12] Speaker 02:
You had no reason to doubt that the caller, that the party who gave you that number wanted to receive these communications.

[00:44:20] Speaker 02:
And they chose not to put their name on the voicemail.

[00:44:23] Speaker 02:
That doesn't give you constructive knowledge, surely not actual knowledge, that the number's been reassigned.

[00:44:29] Speaker 02:
And I think it's important to emphasize that the commission itself

[00:44:33] Speaker 02:
inextricably tied its interpretation of called party to this one call rule.

[00:44:40] Speaker 02:
The commission said that in order to give effect to the prior express consent defense in the statute,

[00:44:46] Speaker 02:
called party and prior express consent have to be read together in a way that gives callers a reasonable opportunity to learn of the reassignment.

[00:44:55] Speaker 02:
Otherwise, the consent is worthless because 37 million numbers a year are reassigned.

[00:45:00] Speaker 02:
And as Judge Edwards pointed out, everybody agrees that there is no guaranteed way to learn about all those reassignments.

[00:45:06] Speaker 07:
Where is that number 37 million coming from?

[00:45:09] Speaker 02:
So it comes from a study of reassigned numbers.

[00:45:14] Speaker 02:
Both the dissenting commissioners raise it, nobody in the majority disputes it, and we're talking about reassignments on a very, very large scale here.

[00:45:24] Speaker 02:
The commission has concluded... I thought that was the speed.

[00:45:28] Speaker 07:
I'm not remembering exactly where.

[00:45:29] Speaker 07:
Maybe it's in one of the amicus briefs.

[00:45:31] Speaker 07:
But I think there's a question about that.

[00:45:33] Speaker 02:
There's an amicus brief that raises a question about it, whether it's 37 million, whether it's 30 million.

[00:45:40] Speaker 02:
It's a number on a very, very large scale.

[00:45:42] Speaker 07:
And the commission admits that they're... But I think very much less now that people can... The portability of numbers changes that.

[00:45:49] Speaker 02:
The portability of numbers may reduce it somewhat, but not all numbers are even portable, for example, prepaid phones and stuff.

[00:45:57] Speaker 02:
This is still a very large problem on a scale of millions and millions of numbers, and we can debate whether it's 30 or 37 or 25, whatever it is.

[00:46:06] Speaker 02:
It's a very large-scale problem.

[00:46:08] Speaker 02:
Nobody on the Commission, either in the majority or in the dissent, disputes that.

[00:46:13] Speaker 02:
Nobody disputes that it's an insoluble problem, that callers have no guaranteed way of finding out about the reassignment.

[00:46:21] Speaker 05:
Your principal bite here is on the safe harbor, it's too short, right?

[00:46:25] Speaker 05:
Surely the Commission has to have something.

[00:46:28] Speaker 02:
No, we have two arguments here, both of which are, I think, significant challenges to this reading.

[00:46:36] Speaker 02:
First of all, called party has to be read to mean the party who provided the consent.

[00:46:43] Speaker 02:
That is the only way to give meaning to the consent defense in the statute, and also to protect the rights of callers.

[00:46:49] Speaker 02:
I'm sorry, also to protect the rights of the individuals who are receiving calls, because as Judge Piller pointed out earlier, once somebody says, I am not the person who you think you're reaching and I don't want to hear from you anymore, at that point, the caller has received notice of the reassignment, and for any future calls, the expected recipient would no longer be the person who initially provided the consent.

[00:47:17] Speaker 02:
We're talking about the person who got the number.

[00:47:23] Speaker 02:
The new holder of the phone number picks it up.

[00:47:25] Speaker 05:
The prior holder who no longer has the number.

[00:47:31] Speaker 05:
What incentive do they have to weigh in anymore once they're beyond that number?

[00:47:36] Speaker 02:
Well, a couple of things.

[00:47:37] Speaker 02:
First of all, they have an incentive to weigh in because a lot of these communications are valuable communications that people actually want to receive.

[00:47:44] Speaker 02:
Fraud alerts, notifications that a taxi is coming, that sort of thing.

[00:47:49] Speaker 05:
I understand that.

[00:47:50] Speaker 05:
They may with their new number call whomever it is and say, please contact me here.

[00:47:57] Speaker 05:
That isn't the same as saying I'm revoking my prior consent.

[00:48:01] Speaker 05:
right that the problem that callers faces what happens when they reach the person new person who has that old number and i understand that what i'm saying you're not conceding the commission has a bit of a difficulty here and that's why i said isn't the real fight here to save harbor their reading of the statute is certainly not untenable i realize you don't agree with that but it's not untenable isn't the real fight here to save harbor how much time do you reasonably need to be able to figure this out

[00:48:30] Speaker 02:
So I'm happy to move to that.

[00:48:33] Speaker 02:
With the safe harbor... You're not happy, but would you?

[00:48:40] Speaker 02:
The Safe Harbor, the commission specifically designed as an opportunity for callers to learn of the reassignment.

[00:48:50] Speaker 02:
The commission said that in order to read call to party and express and prior express consent together in the statute in a proper way, callers have to have that reasonable opportunity.

[00:49:01] Speaker 02:
And the commission said that one call provides it.

[00:49:04] Speaker 02:
That's completely irrational.

[00:49:06] Speaker 02:
Lots of things can happen in that one call, and surely in one text, lots of things can happen that would not provide actual constructive notes.

[00:49:18] Speaker 05:
the answer should be.

[00:49:19] Speaker 05:
Let's say I agree with you.

[00:49:21] Speaker 05:
I'm not saying I do or do not, but I understand that part of the argument.

[00:49:24] Speaker 05:
No big deal.

[00:49:24] Speaker 05:
So what's your answer on the safe order?

[00:49:26] Speaker 05:
What should it be and why?

[00:49:28] Speaker 02:
Well, so I think the answer here is that you should interpret called party to mean expected recipient.

[00:49:35] Speaker 05:
No, you want to go back to the first position.

[00:49:37] Speaker 02:
Well, I think that's what I think provides the reasonable opportunity that the commission is talking about.

[00:49:42] Speaker 03:
So I think what Judge Edwards is getting to is,

[00:49:47] Speaker 03:
You've identified a problem in that callers are going to innocently believe that they're calling someone who's given consent.

[00:49:56] Speaker 03:
And they could be the most good faith of caller of all, the most compliant, TCP compliant caller we can imagine, and they're still going to

[00:50:05] Speaker 03:
be in potential violation of the statute, notwithstanding every good faith on their part.

[00:50:09] Speaker 03:
The commission has identified a problem in that individuals who get a reassigned number can be bombarded with calls of the kind that the statute was designed to constrain.

[00:50:20] Speaker 03:
So what authority does the commission have, even if we assume that your right as to your part of it

[00:50:27] Speaker 03:
The question is, what is some measures that the Commission could take to address the concern that they, by hypothesis, legitimately have?

[00:50:36] Speaker 02:
So let me give you two answers to that.

[00:50:40] Speaker 02:
And I won't belabor this, but I think it's an answer.

[00:50:42] Speaker 02:
If the commission were to interpret called party to mean expected recipient, that would solve the problem both for callers and for those who receive the calls.

[00:50:51] Speaker 02:
Because once the caller no longer reasonably expects to reach the person who initially provided the consent, TCPA liability would attach.

[00:50:59] Speaker 02:
That's Judge Pillard's example of the person who says, I don't want to hear from Wells Fargo anymore.

[00:51:03] Speaker 02:
Second answer, because the one call rule is inextricably intertwined with

[00:51:09] Speaker 02:
the interpretation of called party and prior express consent, the remedy is to strike down the commission's entire treatment of reassigned numbers and send the whole thing back for the commission on the basis of a record, which it didn't generate in this case, on the basis of a record to determine what measures will provide the reasonable opportunity to learn reassignment that the one call does not.

[00:51:32] Speaker 03:
As to that, can I ask this question?

[00:51:33] Speaker 03:
So they have a paragraph in the order, which is a JA 1190 paragraph 86.

[00:51:38] Speaker 02:
I'm sorry, JA.

[00:51:39] Speaker 03:
1190 to 1191, paragraph 86, which goes through what the commission used to be, a number of options that callers could have that would enable callers to gain actual or constructive knowledge.

[00:51:53] Speaker 03:
And if the commission were to mandate those measures, then that would be one step.

[00:52:00] Speaker 03:
And do you have, is there some reason why the commission can't do that?

[00:52:04] Speaker 02:
Um, well, so even if those steps were taken, the commission admits, I believe, in this order, that even those steps are not sufficient to ensure knowledge.

[00:52:14] Speaker 03:
But I think the point is that they would be likely to give.

[00:52:17] Speaker 03:
They would be more likely to give to to result in notice.

[00:52:20] Speaker 02:
they would be more likely, they still would not come close to guaranteeing, in terms of giving effect to the consent requirement, in terms of holding callers strictly liable for speech, that wouldn't solve the problem.

[00:52:31] Speaker 03:
No, but if the commission did this, if they said, look, our rule is actual or constructive notice, constructive notice being not something we deem to be constructive notice where

[00:52:41] Speaker 03:
other people look at it and think there's no notice at all, but where there's actual constructive notice in the way that we normally think of the term.

[00:52:47] Speaker 03:
And here are some measures that are more likely to bring about actual knowledge or constructive knowledge.

[00:52:52] Speaker 03:
Those are mandatory.

[00:52:54] Speaker 03:
You still have a defense where, notwithstanding those measures, there still was no constructive or actual knowledge.

[00:53:01] Speaker 03:
But it's just that what the Commission does is make those measures mandatory.

[00:53:04] Speaker 02:
And I think if callers took these steps, that would help them to learn about reassignments.

[00:53:09] Speaker 02:
It wouldn't guarantee it.

[00:53:10] Speaker 02:
We know that in the record.

[00:53:11] Speaker 02:
DirecTV does these things and has still been sued in reassigned number lawsuits because these measures are not fully effective.

[00:53:20] Speaker 02:
I also think it's worth emphasizing some of the things that the Commission suggests that callers do.

[00:53:27] Speaker 02:
make manual calls in order to verify identity.

[00:53:30] Speaker 02:
First of all, I don't know what a manual call is anymore in light of the definition of an ATDS.

[00:53:37] Speaker 02:
Second of all, the statute is not encouraging more calls in order to verify identity.

[00:53:48] Speaker 02:
The commission suggests that callers could require their consumers to inform them of reassignments, and the remedy for breach of that agreement would be for a business to sue its customer for TCPA liability when the new holder of the number sues.

[00:54:05] Speaker 02:
That is not what Congress intended for this statute to do, to create liability for consumers for somebody else's TCPA claim.

[00:54:13] Speaker 02:
And so the solutions that the Commission has offered are simply not tenable.

[00:54:17] Speaker 02:
The solution to this problem is to interpret called party to mean expected recipient, but at a minimum,

[00:54:23] Speaker 02:
What this court ought to do is to vacate the entire treatment of reassigned numbers because the one-call rule is plainly inadequate to provide actual or constructive knowledge, which is what the commission says is required, and the one-call rule is inextricably intertwined with the understanding of called party.

[00:54:42] Speaker 02:
There's no reason to believe that the commission even would have adopted the interpretation of called party that it did if the one-call rule had not been available to it.

[00:54:54] Speaker 07:
Do you want to talk about the reasonable consent, reasonable revocation?

[00:55:04] Speaker 02:
Yes, so that's our third issue and it's related to reassignment because again through the combination of these two issues, revocation and reassignment, the Commission has made it impossible for callers to reasonably rely on the consent that it receives.

[00:55:20] Speaker 02:
For texts that the commission favored, texts involving banking and health care, the commission required those who revoked consent to use a specified method.

[00:55:31] Speaker 02:
It refused to establish that same rule for other texts and for other calls without giving any reason.

[00:55:38] Speaker 02:
That in and of itself is the definition of arbitrary agency action.

[00:55:42] Speaker 02:
And the commission was right with respect to the banking and health care texts.

[00:55:46] Speaker 02:
Its refusal to standardize the revocation process is unworkable.

[00:55:50] Speaker 02:
With respect to callers, callers have to be able to train designated employees to create accurate records and to streamline the revocation process.

[00:55:59] Speaker 02:
They can't be expected to process requests for revocation made through any individualized method that a consumer chooses.

[00:56:05] Speaker 07:
By even asserting that, you're ignoring reasonable methods in the statute.

[00:56:12] Speaker 02:
I mean, in their interpretation.

[00:56:14] Speaker 02:
Two responses to that.

[00:56:15] Speaker 02:
First of all, some of the methods that the commission suggests are reasonable, are in fact unworkable.

[00:56:24] Speaker 02:
But in particular, in combination, when you're talking about any consumer choosing what might in isolation be a reasonable method,

[00:56:33] Speaker 02:
That becomes unworkable when you think about the cumulative effect for a company of having to process revocations that could arise in any interaction between any consumer and any employee of the company.

[00:56:44] Speaker 07:
It's the principle position of the Commission.

[00:56:46] Speaker 07:
If you offer an easy, clear, and readily available method,

[00:56:52] Speaker 07:
the call parties will use it.

[00:56:54] Speaker 07:
And so this is just not going to be hurting cats from your perspective.

[00:56:59] Speaker 07:
What they don't want to do is set something up that turns out not to be really functional or have to be redone.

[00:57:05] Speaker 07:
They just want to put the onus on you to make it clear, easy, and accessible.

[00:57:11] Speaker 02:
And if the commission were to mandate clear, easy, and accessible methods of the sort that we proposed?

[00:57:17] Speaker 02:
They effectively think they have.

[00:57:20] Speaker 02:
Well, I don't think they have because what they've done is they've left the door open for consumers to revoke individualized methods.

[00:57:28] Speaker 02:
There have already been lawsuits about individualized methods where people have not followed the sorts of centralized and streamlined revocation processes

[00:57:37] Speaker 02:
that companies have put in place.

[00:57:39] Speaker 02:
And this puts callers in an untenable position because they can't tell in advance whether a particular customer's interaction with a particular employee will be deemed a reasonable medium for revoking consent.

[00:57:52] Speaker 02:
As a result, callers either have to take exorbitant steps in order to monitor all of their communications with customers or train their entire workforce in TCPA issues, or, as has already happened, they have to cease calling and they have to stop calling campaigns and stop texting for communications that people want to receive.

[00:58:11] Speaker 02:
The problem is particularly glaring not just for calls, but also for text messages.

[00:58:16] Speaker 02:
Computers can't be programmed to recognize every non-standard revocation request, and companies can't be expected to review every incoming text for a possible opt-out.

[00:58:26] Speaker 02:
The Commission recognized all of this with respect to banking and health care texts, and that's why it mandated a standardized method of revocation there.

[00:58:34] Speaker 02:
It could have done the same thing with respect to other calls.

[00:58:38] Speaker 02:
It gave no reason for not doing so, and that in and of itself is arbitrary agency action.

[00:58:43] Speaker 05:
Do you think the Commission meant to – this is what I meant to ask before.

[00:58:46] Speaker 05:
Do you think the commission meant to preclude a voluntary contract between the calls and the recipients?

[00:58:52] Speaker 02:
Would they agree on an arrangement?

[00:58:55] Speaker 02:
In their brief, they concede that the order does not address that, and while that doesn't solve the problem created by the commission, that goes a long way towards addressing the issue.

[00:59:07] Speaker 02:
I respectfully submit that the Court's opinion here, however it comes out, ought to be expressly based on the same premise that the Commission puts forth in its brief, namely that none of this has to do with contractual agreements between... With mutual as opposed to unilateral.

[00:59:21] Speaker 02:
Yeah, as opposed to unilateral.

[00:59:25] Speaker 02:
Correct.

[00:59:25] Speaker 02:
Yeah, that's right.

[00:59:26] Speaker 02:
That's what contract is.

[00:59:27] Speaker 02:
Right.

[00:59:27] Speaker 02:
If the Court has no further questions, I appreciate the extra time.

[00:59:30] Speaker 02:
Thank you.

[00:59:46] Speaker 03:
Mr. Warner.

[00:59:48] Speaker 04:
Morning.

[00:59:49] Speaker 04:
May it please the court.

[00:59:50] Speaker 04:
Paul Warner on behalf of the Rightly Aided Headquarters Corporation.

[00:59:53] Speaker 04:
And with the court's permission, I'd like to reserve one minute for rebuttal.

[00:59:57] Speaker 04:
I think that entire discussion demonstrates why an exemption for health care calls subject to HIPAA are so important to health care providers.

[01:00:06] Speaker 04:
In 2012, the FCC exempted health care calls subject to HIPAA from certain consent requirements under the TCPA for a number of important reasons.

[01:00:15] Speaker 04:
HIPAA regulates all healthcare-related communications and all means of communicating that information, and it preserves consumer privacy.

[01:00:24] Speaker 04:
Exempting healthcare communications ensures access to important information.

[01:00:29] Speaker 04:
Further regulation by the Commission under the TCPA may frustrate HIPAA and other healthcare-related laws, and the Commission recognized that there is little incentive for abusive calls by healthcare providers.

[01:00:41] Speaker 04:
In fact, the Commission acknowledged that there are very little

[01:00:45] Speaker 04:
privacy concerns where health care providers are contacting customers about their health care.

[01:00:50] Speaker 07:
When you say, I read your brief, and it would help me to have a little bit more, again, a little bit more concreteness about what kinds of calls you're talking about.

[01:01:01] Speaker 07:
Because as I understand it, to remind you of your prescription or whether it's available, whether it needs to be renewed,

[01:01:14] Speaker 07:
given a more privileged treatment than, for example, you have a profile of a patient who has had an orthopedic problem, and you want to market to them various kinds of painkillers.

[01:01:28] Speaker 07:
I think there's a reason why, I mean, that's what I take the commission to have done, is treat the former differently from the latter.

[01:01:34] Speaker 07:
Am I right about that?

[01:01:36] Speaker 04:
I don't know necessarily if you're right about that, but let me back up and start with your premise, which is HIPAA does, in fact, treat calls differently.

[01:01:44] Speaker 04:
It defines what marketing is, and it carves out from marketing a suite of communications that do not require prior consent and do not require authorization, and those are defined as communications related to healthcare treatment,

[01:01:56] Speaker 04:
health care operations.

[01:01:57] Speaker 07:
You just said HIPAA, but we're talking about a TCPA.

[01:02:00] Speaker 07:
So there are two different statutes with two different functionalities.

[01:02:02] Speaker 07:
HIPAA is controlling how consumers' private information is used.

[01:02:06] Speaker 07:
We have a different privacy interest here, which is the privacy not to be barraged with unwanted communications and advertising.

[01:02:14] Speaker 07:
And I guess at a basic level, I'm not sure I see the conflict.

[01:02:18] Speaker 07:
Something could be

[01:02:20] Speaker 07:
covered by HIPAA in a certain way and covered by the TCP in a different way.

[01:02:23] Speaker 04:
Well, the conflict is this.

[01:02:25] Speaker 04:
You have HIPAA and the privacy rule, which the Commission has recognized.

[01:02:29] Speaker 04:
relate to all communications related to health care, and also all means of communicating that information.

[01:02:36] Speaker 04:
DCPA also regulates equipment and types of communications.

[01:02:41] Speaker 04:
So what we would suggest, what we argued in our brief, is that when the SEC is operating in an area where it may interfere with HIPAA and the privacy rule, which it did recognize in 2012, it has an obligation to acknowledge that conflict and to minimize it, if not avoid it.

[01:02:57] Speaker 07:
Okay, back to my example.

[01:02:59] Speaker 07:
If you're Rite Aid and you're telling me that my prescription painkiller for my orthopedic problem is available, you want that same better treatment when you then send me texts advertising crutches and Advil and is that right?

[01:03:16] Speaker 04:
I'm not sure I understand.

[01:03:18] Speaker 04:
What I want is, what Red Aid wants and what other health care providers want is the same treatment of HIPAA calls that the Commission provided in 2012, which is all calls subject to HIPAA are exempt from the consent requirements.

[01:03:30] Speaker 04:
And the calls that are actually exempt are health care treatment, health care operations, and payment.

[01:03:35] Speaker 04:
It's the calls that fall within

[01:03:37] Speaker 04:
those categories under HIPAA that the FCC has recognized.

[01:03:41] Speaker 07:
Under HIPAA, does that include recommendations of over-the-counter products?

[01:03:46] Speaker 04:
It does include alternative treatments in products and services.

[01:03:49] Speaker 04:
Yes, it would include those.

[01:03:52] Speaker 07:
But to be clear... Whereas under the TCPA, it might say, no, that is something that if a consumer hasn't asked for it,

[01:03:59] Speaker 07:
They don't want.

[01:04:00] Speaker 07:
And that's not inconsistent with HIPAA.

[01:04:03] Speaker 04:
Here's the problem.

[01:04:04] Speaker 04:
The commission recognized in 2012 that all calls subject to HIPAA are not calls made for property, goods, and services, and are not advertisements under the TCPA.

[01:04:15] Speaker 07:
Where did they recognize that?

[01:04:17] Speaker 04:
That's in paragraph 60, I believe, of the 2012 order.

[01:04:22] Speaker 04:
One of the central issues that we have with what the FCC has done here is that the FCC does not have any expert judgment or any reasoned basis or any statutory authority to be doing the kind of line drawing that it has done.

[01:04:37] Speaker 03:
If we remove from the field of consideration the 2012 language that you're relying on, let's just assume that away.

[01:04:43] Speaker 03:
I know you're relying on that, but let's just assume that away.

[01:04:47] Speaker 03:
If we assume that language away, is there any necessary inconsistency between the fact that HIPAA may treat certain subject matters as exempt from HIPAA coverage and the FCC's determination in this case that nonetheless, those things aren't within the field of the exemption from the TCPA?

[01:05:09] Speaker 04:
Well, two responses.

[01:05:10] Speaker 04:
Yes, the statutes in HIPAA, we cite in our brief, 42 U.S.C.

[01:05:14] Speaker 04:
1322, as well as the definition of the Privacy Rule 64-130, or 103, excuse me, do, in fact, cause conflict with what the Commission has done to the TCPA here.

[01:05:26] Speaker 04:
But the larger point is, and what our main argument is, that if the Commission is going to depart from what it had done in 2012,

[01:05:35] Speaker 04:
It needs to acknowledge that and it needs to explain that.

[01:05:38] Speaker 04:
It's not simply that there is a conflict, it is that the Commission acknowledged in 2012 that there's a conflict, and it adopted a hands-off policy in 2012 for certain communications.

[01:05:49] Speaker 04:
Then it comes along in 2015, does not acknowledge what it did in 2012, and adopts a different approach for wireless communications.

[01:05:58] Speaker 04:
In 2012, it said that all calls subject to HIPAA are exempt.

[01:06:02] Speaker 04:
In 2015, it said that timely calls related to exigent health care purposes are exempt.

[01:06:08] Speaker 05:
So... Are we talking about, with respect to your set of clients, artificial pre-recorded calls or automated telephone dialing system calls or both?

[01:06:19] Speaker 04:
Yes, both.

[01:06:20] Speaker 04:
Both?

[01:06:21] Speaker 04:
Yes.

[01:06:24] Speaker 05:
So, if under the conceded definition,

[01:06:29] Speaker 05:
You dial from Rite Aid a single customer to say a prescription is ready.

[01:06:36] Speaker 05:
You don't use the automatic telephone dialing system.

[01:06:39] Speaker 05:
It's just a single call.

[01:06:41] Speaker 04:
Well, if you picked up, yes, Judge Edwards, if you picked up a rotary phone, if Rite Aid had a suite of rooms full of people using rotary phones to make individual calls, that would not come within the statute.

[01:06:52] Speaker 05:
But if they were using a cell phone,

[01:06:55] Speaker 05:
to make the call to me to say my prescription is ready, and that cell phone has the possibility of having an automatic telephone dialing system on it, and they call me to tell me my prescription is ready, that's a violation.

[01:07:08] Speaker 04:
Yes, that's what the commission has indicated.

[01:07:10] Speaker 04:
Unless I gave consent.

[01:07:13] Speaker 04:
Yes, and that's exactly our problem.

[01:07:15] Speaker 04:
We're talking about communications here that are protected under federal law, are promoted under federal law, are beneficial to ensuring and promoting healthcare outcomes for patients.

[01:07:28] Speaker 04:
If there are no further questions, I can reserve the balance of my time and submit that the FCC's treatment of health care calls here is not reason decision-making.

[01:07:41] Speaker 04:
It should be set aside.

[01:07:42] Speaker 04:
Thank you.

[01:07:53] Speaker 03:
Mr. Novak.

[01:07:54] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[01:07:56] Speaker 01:
I'm Scott Novak for the respondents.

[01:07:58] Speaker 01:
What I think we've just heard today is that the petitioners here are asking the court to upend policies that they and other mass callers have already been effectively operating under for many years.

[01:08:10] Speaker 01:
So to begin with, the FCC's determination that auto diodes include devices that call stored list of numbers comes not from the order on review, but instead from previous orders dating back to 2003 and 2008, which have never previously or properly been challenged and which, as Judge Pillard recognized, has been ratified by Congress.

[01:08:28] Speaker 05:
Well, the problem is, lots of problems arose by virtue of the original set of regulations.

[01:08:37] Speaker 05:
And they've all been documented.

[01:08:39] Speaker 05:
You don't dispute it.

[01:08:40] Speaker 05:
There are a ton of issues that have arisen.

[01:08:42] Speaker 05:
And they're properly before you.

[01:08:44] Speaker 05:
And you've probably taken on those issues.

[01:08:46] Speaker 05:
Those issues are before us now.

[01:08:47] Speaker 05:
You chose to take one and address them all together as integrated issues.

[01:08:53] Speaker 05:
And so it's not like it was a done deal in 2003, or 10, or 12.

[01:08:59] Speaker 05:
was, you didn't have to take it on again.

[01:09:02] Speaker 05:
You did.

[01:09:02] Speaker 05:
So we're here.

[01:09:02] Speaker 05:
Here we are.

[01:09:03] Speaker 01:
Well, Your Honor, I want to resist that because I don't think we took it on again.

[01:09:06] Speaker 01:
But there are two points I want to stress here.

[01:09:08] Speaker 01:
The first is that we agree with the petitioners.

[01:09:10] Speaker 01:
If you look at page 21 of their opening brief, you'll see this.

[01:09:13] Speaker 01:
There are really two analytically distinct questions about autodilers.

[01:09:18] Speaker 01:
So one question concerns the meaning of capacity.

[01:09:20] Speaker 01:
What does it mean to have the, quote, capacity to operate as an autodiler?

[01:09:24] Speaker 01:
And then there's a separate, distinct question.

[01:09:26] Speaker 01:
Everyone agrees this is a distinct question about what the underlying elements of an auto-dialer are.

[01:09:32] Speaker 01:
What is the need of the capacity to do?

[01:09:34] Speaker 01:
So that's a separate question.

[01:09:36] Speaker 01:
We've said in our brief, I'm not sure that question's properly before the court, and I'm happy to discuss that.

[01:09:40] Speaker 05:
Well, then there's a third question, and I'm still struggling with this.

[01:09:44] Speaker 05:
No surprise to anyone here.

[01:09:46] Speaker 05:
This question is, what's prohibited?

[01:09:48] Speaker 05:
So, Your Honor, the... What's prohibited is using an automatic dialing

[01:10:11] Speaker 05:
dialing system, using it.

[01:10:13] Speaker 01:
So what I think I can tell you, Judge Edwards, is that it's been the universal understanding of everyone in this space for the last quarter century, that due to the interplay of these different provisions and the way that... Oh, I don't think Congress had a clue that we would be facing the kinds of issues that we're facing.

[01:10:28] Speaker 05:
Well, I think that much is very much... There's no universal understanding there.

[01:10:32] Speaker 01:
We agree with you, Judge Edwards, and I think that's exactly the kind of ambiguity or gap-filling that gives the agency the authority to actually keep the statute updated.

[01:10:40] Speaker 01:
I don't see any gap-filling.

[01:10:40] Speaker 05:
It says the only thing that's prohibited is using an automatic telephone dialing system, not using a device that has that capacity.

[01:10:49] Speaker 05:
I understand that we've gone through this before, but I have to hear your view on it.

[01:10:53] Speaker 05:
But I can't get past what the prohibition is about.

[01:10:56] Speaker 01:
So it might be helpful if I can explain how I think this usually plays out in practice.

[01:11:01] Speaker 01:
So what happens is you have a lot of callers, mass callers, using this commercial telemarketing equipment.

[01:11:06] Speaker 01:
And most of it is designed to be doing mass calling, at least from a stored list of numbers.

[01:11:12] Speaker 01:
But it might have different modes.

[01:11:14] Speaker 01:
And there might be a switch you can flip to go into manual dialing mode.

[01:11:18] Speaker 01:
And the problem then arises that someone sues under the TCPA, and the defendant says, well, you haven't adequately pleaded that I used an autodialer because you can't establish that it was in autodialer mode.

[01:11:30] Speaker 01:
And it exploits the pleading standards to make it impossible to bring claims that may be meritorious.

[01:11:35] Speaker 05:
So I think the way that Congress... It exploits the pleading standards or says there's a burden of proof and you haven't met it?

[01:11:42] Speaker 01:
Your Honor, I'm willing to accept that formulation, but I think the... Well, I mean, that's the way the law works.

[01:11:48] Speaker 01:
Well, so the point that I want to get to is that I think Congress saw this as a problem.

[01:11:52] Speaker 01:
And the way that Congress addressed this, and I think my friend Mr. Diretzky mentioned this, is you have evidentiary problems.

[01:11:58] Speaker 01:
And one way to deal with them is to focus on the equipment itself rather than how the call is made.

[01:12:03] Speaker 01:
And that makes it very easy.

[01:12:05] Speaker 01:
You look at the equipment and you say, what does equipment have the capacity to do?

[01:12:09] Speaker 01:
And that's how we tell whether the TCPA applies or not.

[01:12:12] Speaker 01:
So that's been the approach.

[01:12:13] Speaker 01:
It's been followed by everyone.

[01:12:14] Speaker 01:
I don't think it's unreasonable.

[01:12:16] Speaker 01:
It may be possible that you could read this language differently, but this is how it's, I think, universally been addressed.

[01:12:21] Speaker 05:
Maybe.

[01:12:22] Speaker 05:
That's the only way I can read it, because that's what the word said.

[01:12:26] Speaker 05:
And I can totally understand that Congress wasn't looking at this situation when it passed, when it wrote these words.

[01:12:33] Speaker 05:
And so the reading I have, I'm sure, is totally consistent with what Congress had in mind, because we've now

[01:12:41] Speaker 05:
And you're trying to capture a situation that Congress could not have had.

[01:12:44] Speaker 05:
Why is it not what the language says?

[01:12:46] Speaker 05:
But I understand the definitional issue because the definition is strange in light of what the prohibition says.

[01:12:53] Speaker 01:
So I think it'd be useful to discuss what Congress had in mind, because I think that was the main theme of my friend's discussion earlier.

[01:13:00] Speaker 07:
Let me just, before you move on, just to pin down what I think you just said.

[01:13:05] Speaker 07:
So the capacity language is really there to block evasion, where a party actually, it's about proof.

[01:13:17] Speaker 07:
It's not about whether what's prohibited is the use of the autodialer.

[01:13:21] Speaker 01:
I think in many circumstances it facilitates an administrable rule.

[01:13:25] Speaker 01:
It's about proof.

[01:13:27] Speaker 01:
It's about proof, but also it means that if anyone has confusion about what kinds of devices are autodilers, they can come to the FCC and ask for a declaratory ruling or rulemaking to clarify the status of that device.

[01:13:40] Speaker 03:
Your view is not that Congress used the terminology capacity to go to proof.

[01:13:45] Speaker 03:
Your view is just that it turns out that capacity serves that purpose, which is a useful purpose.

[01:13:50] Speaker 03:
You actually think that Congress thought about this and thought that we'd use capacity because otherwise there would be a proof problem?

[01:13:57] Speaker 01:
No, as I understand the legislative history, there were

[01:14:00] Speaker 01:
five, six, seven different bills considered over many different Congresses.

[01:14:04] Speaker 01:
The point is consumers were fed up with this behavior, and Congress eventually merged them all into one bill.

[01:14:10] Speaker 01:
And that may be why we have some of the difficulties here with different language, or it's hard to piece together how different provisions apply.

[01:14:16] Speaker 01:
I think that there were a lot of different concerns that were all melded in here to one.

[01:14:21] Speaker 01:
But we pointed out in our brief that the petitioners haven't offered any sensible explanation, I think, for why the TCPA would apply only when calling random or sequential numbers and not when calling any other list of numbers.

[01:14:35] Speaker 03:
Can we do it with capacity first?

[01:14:37] Speaker 03:
Sure.

[01:14:38] Speaker 03:
So not going past the functionality, but going to capacity first.

[01:14:42] Speaker 03:
Their view, the position they put forward is it's equally

[01:14:47] Speaker 03:
impossible to believe that Congress meant to cover every smartphone just because every smartphone is capable of downloading an app that does random or sequential dialing?

[01:14:57] Speaker 01:
So your response to that well strikes me as a situation where the petitioners haven't been willing to take yes for an answer Is they keep saying that it would be problematic if the TCP applied to ordinary smartphones And we've said again and again that this order does not address smartphones

[01:15:13] Speaker 07:
Well, surely it should and would if I am hired by, you know, Telemarketers, Inc.

[01:15:19] Speaker 07:
to work at home on a, you know, whatever volume basis and take their app and load it onto my smartphone and do precisely the kind of calls that used to be done from a calling bank and, you know, do predictive dialing.

[01:15:35] Speaker 07:
I mean, presumably if I'm doing that, that would and should be covered.

[01:15:39] Speaker 07:
And the problem is with the language,

[01:15:42] Speaker 07:
You know, when you put together using an automated telephone dialing system, and automated telephone dialing system is defined as something that has a capacity, then using something that has the untapped capacity is the problem.

[01:16:02] Speaker 07:
I mean, if you read the statute that way, it seems impermissibly broad.

[01:16:08] Speaker 07:
And so where is the line?

[01:16:11] Speaker 01:
Well, so I think there are many different places you could draw the line.

[01:16:14] Speaker 01:
That's their position.

[01:16:15] Speaker 01:
There are many different places you could draw the line if you had an appropriate record to do so.

[01:16:19] Speaker 01:
And the problem for the agency here is that we had no record.

[01:16:22] Speaker 01:
We had no record as to the capacities of smartphones in general.

[01:16:26] Speaker 01:
And we had no record about the capacity of any individual model of smartphone.

[01:16:31] Speaker 01:
And there are a lot of things, I think, that we would have to take into account when addressing this.

[01:16:35] Speaker 01:
So I think one thing we'd have to look at is what functions are inherent to this type of device.

[01:16:39] Speaker 01:
I think we'd have to look at what functions are built into a given device.

[01:16:42] Speaker 01:
I think we'd have to look at what it would take to enable new functions.

[01:16:45] Speaker 01:
What would you have to do?

[01:16:47] Speaker 01:
And I think we'd also have to look at how the device is being promoted or advertised.

[01:16:50] Speaker 03:
Because, for example, a lot of the language you use in the order seems like it could apply four square to smartphones.

[01:16:57] Speaker 01:
Well, Your Honor, again, the order hasn't yet resolved that.

[01:17:00] Speaker 01:
I understand it's being unresolved.

[01:17:01] Speaker 03:
I know it hasn't resolved it, but it actually treats with it.

[01:17:03] Speaker 03:
It's not that it ignores it.

[01:17:05] Speaker 03:
It treats with it.

[01:17:06] Speaker 03:
And you said that petitioners can't take yes for an answer.

[01:17:11] Speaker 03:
But I don't know that they have an answer, because I think the order actually treats with smartphones.

[01:17:16] Speaker 03:
And then the language in the order makes it seem like everything the order is saying covers smartphones.

[01:17:21] Speaker 03:
So there's not a yes answer to that.

[01:17:24] Speaker 01:
If I can go back to a question that Your Honor asked earlier about, are there situations where smartphones might definitely be covered?

[01:17:30] Speaker 01:
If someone has downloaded an app, used it, is using it, there certainly would be some situations.

[01:17:35] Speaker 01:
Or I think if a commercial telemarketing equipment manufacturer sold something they were advertising as an auto-dialer kit, and this kit contains just two things.

[01:17:44] Speaker 01:
and a smartphone, still ordinary smartphone, shrink wrapped in the box, and a set of instructions saying to use this as an autodialer, go here, do this.

[01:17:53] Speaker 01:
I don't know whether that would fall under the petitioner's present capacity test, but that sure looks like an autodialer.

[01:17:58] Speaker 01:
But there are a lot of different places where a line might be drawn, and we haven't had opportunity to consider that.

[01:18:04] Speaker 01:
And if anyone

[01:18:05] Speaker 01:
is genuinely concerned about the status of smartphones.

[01:18:08] Speaker 01:
They're welcome to file a petition asking the agency to do so.

[01:18:11] Speaker 01:
What I think is remarkable is that it's been more than a year since this order was released and none of the petitioners or anybody else has come to the agency asking us to address this.

[01:18:20] Speaker 01:
I'm asking you.

[01:18:23] Speaker 06:
Can you have your smartphones?

[01:18:28] Speaker ?:
Where's my smartphone?

[01:18:32] Speaker 01:
Your Honor, our position here is that this order hasn't yet resolved it, and I am somewhat limited in what I can attribute to the Commission when our Commissioners haven't yet had a chance to speak to the issue.

[01:18:41] Speaker 01:
But I think at press, there are many ways you could draw this line.

[01:18:44] Speaker 01:
And one example, I would consider saying that for a general purpose computing platform, like a computer or a smartphone, that can theoretically perform any number of functions if you download a program or app.

[01:18:56] Speaker 01:
I don't know that any particular one of those functions would be sufficiently concrete and I think it would remain too theoretical until there's been some step towards enabling or promoting that functionality.

[01:19:07] Speaker 07:
I'm not sure I understand the enabling or promoting because I took you to be largely agreeing

[01:19:16] Speaker 07:
with Judge Edwards reading the statute that using means the only thing for which a caller is liable, in fact, is use of the ATDS capacity

[01:19:29] Speaker 07:
And that the reason capacity is referred to is to help get over the pleading hurdle, that the victim of robocalls doesn't have to know about the on-off switch when they're pleading.

[01:19:43] Speaker 07:
Is that right?

[01:19:44] Speaker 07:
That that's your position that, in fact, you do have to use the auto dialing capacity?

[01:19:48] Speaker 01:
No, no, it's not our submission.

[01:19:50] Speaker 01:
And again, I just think this is something that's been conceded.

[01:19:52] Speaker 01:
It was the general understanding of everyone as the premise for this order, was that this applies when you are using a device which is an autodialer, whether or not at that time the device is configured as an autodialer or whether it's being used that way.

[01:20:07] Speaker 01:
The way that Congress wrote this.

[01:20:08] Speaker 07:
Why would that be your position?

[01:20:10] Speaker 07:
I just, what interest does Congress have and does the Commission have in

[01:20:18] Speaker 07:
subjecting me to strict liability for using my smartphone on Sunday to call my parents when I'm plugging it into an ATDS the rest of the week and really intending to make it into Telemarketer Inc.

[01:20:32] Speaker 07:
home phone bank for auto-dialing.

[01:20:36] Speaker 01:
So, Your Honor, this is a situation where we are genuinely trying to give you our best reading of the statute, and this is what we understand the statutory language to compel.

[01:20:45] Speaker 01:
And I think there may be good reasons why Congress did that, such as these evidentiary issues.

[01:20:50] Speaker 01:
But we're trying to construe the statute that Congress gave us, and we understand it.

[01:20:53] Speaker 07:
And you're not, though.

[01:20:54] Speaker 07:
I mean, I'm just – you're not construing it.

[01:20:57] Speaker 07:
just to get to the evidentiary issues.

[01:20:58] Speaker 07:
Because that's actually how I read your order.

[01:21:00] Speaker 07:
It was time for first to proof.

[01:21:01] Speaker 07:
And I thought that the capacity question was really cabined to this proof issue.

[01:21:09] Speaker 07:
And you're saying something else?

[01:21:10] Speaker 01:
I don't think so.

[01:21:11] Speaker 01:
I'm sorry.

[01:21:11] Speaker 01:
I may not understand the question.

[01:21:12] Speaker 01:
But I think we're in agreement on this.

[01:21:15] Speaker 01:
OK.

[01:21:15] Speaker 03:
Even the dissenting commissioners read the statute that way, don't they?

[01:21:18] Speaker 03:
I thought the dissenting commissioners make the point that it's not true that use of automated dialing is necessary because manual, making a manual call with equipment that has the capacity to make, to do automated dialing is enough to bring the statute into play.

[01:21:33] Speaker 01:
That's correct.

[01:21:34] Speaker 01:
Again, I think that's just the premise that everyone has operated under.

[01:21:37] Speaker 05:
The judge bill calls her family, you're saying, if she's lying.

[01:21:41] Speaker 05:
If she... She doesn't have consent.

[01:21:42] Speaker 01:
if she uses an auto-dialer.

[01:21:45] Speaker 07:
No, she's not using an auto-dialer.

[01:21:47] Speaker 07:
Well, I'm using an auto-dialer in its non-auto-dialing mode.

[01:21:50] Speaker 01:
So if she's using a device which has the capacity to auto-dial numbers, I apologize, the language is unclear.

[01:21:56] Speaker 07:
I actually think that Judge Trudevassan, in thinking he was clarifying my position, was clarifying the opposite.

[01:22:02] Speaker 07:
No, he read it the other way.

[01:22:03] Speaker 06:
Yeah.

[01:22:04] Speaker 07:
So as I had read the order until being set

[01:22:09] Speaker 07:
being corrected today, I thought that the commission was saying, what we're really concerned with is use of autodilers to autodial.

[01:22:16] Speaker 07:
And we're not concerned with use of machinery that has the capacity to autodial to call mom.

[01:22:22] Speaker 07:
And you're saying, well, no, if it really does have the capacity to autodial, then when you're using it to call someone and you don't have their consent, surprise, my high school buddy who I haven't talked to in forever, no consent, then I might be liable.

[01:22:35] Speaker 07:
And you're saying to that latter hypothetical, yep.

[01:22:38] Speaker 01:
I think you're correct that our concern is with the use of autodialers to autodial.

[01:22:44] Speaker 01:
Now, we understand the statute to require us at some level to sweep somewhat more broadly, but the concerns that we are being motivated by are with autodialers being used to autodial.

[01:22:55] Speaker 01:
So I think you see that reflected in the order.

[01:22:58] Speaker 05:
It's such an easy thing to say if that was your concern.

[01:23:02] Speaker 05:
There's no reason to go more broadly.

[01:23:05] Speaker 05:
That's what I don't care.

[01:23:07] Speaker 01:
Your honor, I again, I just think this comes down to this is the presumption that everyone had when working with the statute for the last quarter century.

[01:23:14] Speaker 01:
So I'm not sure anyone really took a look at it and thought there was a need to speak to this more specifically because that's been the background understanding that everyone has proceeded under.

[01:23:23] Speaker 01:
But I think it'd be helpful to turn to this functionality issue for a minute, because I do think that was a principal thrust of the arguments, very broad arguments being made here by my friends for the petitioners.

[01:23:34] Speaker 01:
So we pointed out in our brief that there doesn't appear to be any sensible reason why Congress would have wanted the TCPA to cover calls to random or sequential numbers, but not calls to any other group of numbers.

[01:23:46] Speaker 01:
And they made two responses, and I think if you examine those, neither of those responses hold up, and I think it puts them in a real absurdity problem.

[01:23:53] Speaker 01:
So they've made this argument that random or sequential numbers are particularly problematic because they might call and wind up tying up emergency service numbers.

[01:24:03] Speaker 01:
And there's two problems with that limitation.

[01:24:06] Speaker 01:
One is that if you're calling a fixed list of numbers, that list might have emergency service numbers on it too.

[01:24:10] Speaker 01:
So the same problem applies potentially to fixed lists as it does to random sequential numbers.

[01:24:16] Speaker 01:
And the second problem with this, I think, is that if Congress was really just concerned about tying up emergency service numbers, they could have passed a law that was limited to calls to emergency service numbers, as Congress did in 2012.

[01:24:28] Speaker 01:
But that's not what it did here.

[01:24:29] Speaker 01:
Congress also separately regulated auto-dialed and pre-recorded calls to wireless numbers.

[01:24:35] Speaker 01:
And the congressional findings in Section 2 of the TCPA repeatedly explained that Congress was concerned not only about calls to emergency service numbers, but also about nuisance.

[01:24:45] Speaker 03:
I understand what you're saying as a policy matter to some extent, but of course what they have on their side is you're saying here's reasons why the statute logically should go beyond random or sequential numbers.

[01:24:56] Speaker 03:
What they have on their side is the statute speaks in terms of random or sequential numbers.

[01:25:00] Speaker 03:
So you have to treat with the words that are actually in the statute.

[01:25:03] Speaker 01:
Well, I don't think they have quite that much on their side, Your Honor.

[01:25:06] Speaker 01:
I think there have been two remarkable concessions.

[01:25:08] Speaker 01:
There was a concession in the reply brief, and they repeated this again today.

[01:25:11] Speaker 01:
Page 14 of the reply brief, the petitioners concede that their reading is, quote, somewhat awkward.

[01:25:18] Speaker 01:
And they said again here today, I wrote it down, that their reading is, quote, a little bit awkward.

[01:25:22] Speaker 01:
And I think this goes to Judge Pillard's question earlier, that the burden they've taken upon themselves is to demonstrate that this statutory language unambiguously forecloses the FCC's interpretation.

[01:25:33] Speaker 01:
And I don't think they've gotten there as a matter of the language, and they also can't explain the absurd policy questions.

[01:25:38] Speaker 03:
But it doesn't seem to me to be a logical fallacy to say, even if our reading is awkward, your reading is inconceivable.

[01:25:45] Speaker 03:
You may resist the second proposition, but at least logically, you can make those two arguments simultaneously.

[01:25:52] Speaker 01:
Well, I will defer to some of the exchanges here earlier that I think we've given at least two possible ways to read this that are inconceivable and entirely consistent.

[01:25:59] Speaker 03:
Can you walk through those?

[01:26:00] Speaker 01:
Yes.

[01:26:01] Speaker 01:
So one of them might be that the, let me step back for one second.

[01:26:06] Speaker 01:
So I think what the petitioners, the way they've been approaching this is as if the statute said calling a random or sequential list of telephone numbers.

[01:26:15] Speaker 01:
And that's not the language that Congress used.

[01:26:17] Speaker 01:
Random or sequential appears in this phrase using a random or sequential number generator.

[01:26:22] Speaker 01:
And the question is what that phrase modifies.

[01:26:25] Speaker 01:
And I think we're actually in the universe of the Supreme Court decision in Young, which explained that if Congress uses a free-floating modifier without being clear on what it applies to, that creates the kind of ambiguity the agency can interpret.

[01:26:38] Speaker 01:
So one possibility is that language modifies produce.

[01:26:41] Speaker 01:
And I think that's roughly the position being taken here.

[01:26:44] Speaker 01:
But it can't modify store.

[01:26:46] Speaker 01:
Because the Third Circuit explained in Dominguez, it's nonsensical to talk about taking numbers produced elsewhere and storing them using a random or sequential number generator.

[01:26:56] Speaker 01:
And I think the position that was taken, which they conceded was a bit awkward, was that they would read the language to be to store numbers that are produced using a random or sequential number generator.

[01:27:06] Speaker 01:
And that's not what the statute says.

[01:27:08] Speaker 01:
The statute says store or produce.

[01:27:10] Speaker 01:
So a device that solely stores numbers.

[01:27:12] Speaker 01:
That's not producing them.

[01:27:13] Speaker 01:
It takes them from someplace else.

[01:27:15] Speaker 03:
Let me stop you there.

[01:27:16] Speaker 03:
I understand what you're saying if you assume that store or produce have to be mutually exclusive.

[01:27:21] Speaker 03:
But I don't think there's a Canada statutory construction that says that the two things on opposite sides of or have to be mutually exclusive.

[01:27:28] Speaker 03:
One of them can encompass the other one.

[01:27:30] Speaker 03:
I believe, and if that's true, then their reading is store means produce and then store, and produce means just produce.

[01:27:37] Speaker 03:
And I don't know the lay of the technical landscape at the time that the statute was enacted.

[01:27:42] Speaker 03:
Maybe it was possible that there were machines that required simultaneous production and dialing, and then there was an Uber machine that not only did production and dialing, but also did production and then storing for later dialing.

[01:27:53] Speaker 03:
And if that were the case, you could kind of understand why the statute would have been phrased in this way.

[01:27:57] Speaker 01:
So our submission is that this is an ambiguous statute.

[01:28:01] Speaker 01:
And I take your honor's point that it may be possible, that there may not be a canon that precludes you from reading the language that way, but certainly this is ambiguous.

[01:28:11] Speaker 01:
And the language, looking at the plain language, store or produce, reading this language, I don't think it unambiguously forecloses the interpretation that store and produce are separate.

[01:28:22] Speaker 03:
And what's your understanding, though, because what you're saying is that using a random or sequential number generator has to modify both store and produce?

[01:28:30] Speaker 01:
No, I think it could modify only produce and not store.

[01:28:32] Speaker 01:
I think that is one possibility.

[01:28:33] Speaker 03:
That seems tough, but explain to me how that's possible given the way the statute is framed.

[01:28:39] Speaker 03:
Why would the clause come where it does if it only modifies produce?

[01:28:43] Speaker 01:
Well, it's not clear why this clause comes where it comes at all.

[01:28:47] Speaker 01:
Now, I would think perhaps you might put it there if you wanted to modify called.

[01:28:52] Speaker 07:
Right, I thought that was the commission's position and they've been accusing you of taking a lot of different positions and it would be helpful to me if you would commit to the one that you're in fact taking in the order.

[01:29:03] Speaker 01:
So I think there's a, I want to answer that at least two ways.

[01:29:06] Speaker 01:
One is there's an overarching approach throughout this order that the FCC proceeds here incrementally on a case-by-case basis as concrete facts arise.

[01:29:15] Speaker 01:
And I think that's the responsible approach in this area of complex technology and rapid technological and economic change.

[01:29:23] Speaker 01:
We take these questions as they arise.

[01:29:25] Speaker 01:
And so far, we haven't been presented with a situation where there would be a difference.

[01:29:29] Speaker 01:
whether it modifies produce or whether it modifies called.

[01:29:33] Speaker 01:
We've only been confronted with concrete types of technology.

[01:29:36] Speaker 01:
We were confronted with predictive dialers.

[01:29:38] Speaker 01:
We addressed those.

[01:29:39] Speaker 01:
There was no, I think it's important.

[01:29:42] Speaker 01:
The petitioners raised this as an entirely abstract issue before the commission.

[01:29:46] Speaker 01:
They've never pointed to any

[01:29:47] Speaker 01:
particular types of technology, any particular device that they'd like to use but can't unless we adopt their interpretation.

[01:29:53] Speaker 03:
What's your understanding of why predictive dialers come within the statute?

[01:29:56] Speaker 03:
What is your reading of the words other than the one that says store isn't modified by using a random sequential number generator?

[01:30:02] Speaker 01:
So this goes to my other response to Judge Pillard's question, which is that this is something that was addressed in the 2003 order and the 2008 order that wasn't addressed in this order.

[01:30:12] Speaker 01:
I don't think it was before the commission.

[01:30:13] Speaker 01:
And that's why I'm concerned that it's not before the court.

[01:30:16] Speaker 01:
But those orders, I think, explained that Congress expected us to wrote this law broadly and expected the FCC to take steps to make sure that it was addressing technological and economic change.

[01:30:28] Speaker 03:
But you have to do it with these words.

[01:30:29] Speaker 03:
And what is the understanding of these words that brings in predictive dialers?

[01:30:34] Speaker 01:
So I think our understanding is those words could work in one of two ways.

[01:30:38] Speaker 01:
So it might apply to produce and not store.

[01:30:41] Speaker 03:
OK, put that one aside.

[01:30:43] Speaker 03:
What's your other understanding under which predict?

[01:30:46] Speaker 03:
And by predictive dialers, by the way, what I think is significant about predictive dialers is not that they

[01:30:52] Speaker 03:
have some sort of algorithm that helps you predict when somebody's home, it's that it's taking a pre-existing data set of numbers as opposed to one that's randomly and sequentially generated by this machine.

[01:31:03] Speaker 03:
It's taking a pre-existing data set of numbers and then bringing that data set into the machine.

[01:31:08] Speaker 01:
I agree, Your Honor.

[01:31:09] Speaker 01:
I think that's our understanding of the holding that really comes out of these 2003 and 2008 orders.

[01:31:14] Speaker 01:
I know the technology that was addressed there was predictive dialers, but I understand the only holding you can read out of it is that a device that calls a stored list of numbers, a list of numbers from a database, is an auto-dialer.

[01:31:25] Speaker 03:
So what's your understanding of these words that encompasses the imported stored list?

[01:31:30] Speaker 01:
So we address the situation where they modify produce, but not store.

[01:31:36] Speaker 01:
And I think in that case, the device that causes store listing.

[01:31:38] Speaker 03:
Other than that one.

[01:31:38] Speaker 01:
The other interpretation would be that they modify called, how the numbers are to be called.

[01:31:42] Speaker 01:
And I think Judge Pillard suggested this earlier.

[01:31:45] Speaker 01:
So if you have a stored list of numbers,

[01:31:48] Speaker 01:
And you're going to go through and call those numbers, and you've got to iterate through them.

[01:31:51] Speaker 01:
And you're either going through them randomly, or you're going through them in some sequence.

[01:31:55] Speaker 03:
And so just how I understand that argument, if the data set consisted of three phone numbers, just three, and the equipment brought in three phone numbers, the fact that the equipment could randomly call those three, let's make it two, two numbers,

[01:32:10] Speaker 03:
It could either call the first one first or the second one first.

[01:32:12] Speaker 03:
That would be enough.

[01:32:13] Speaker 01:
Yes.

[01:32:14] Speaker 01:
And I want to stress, if it's doing this automatically without human intervention, so if there's a human being who's telling it to place each call, then you're not dialing those numbers automatically.

[01:32:25] Speaker 05:
So it's not automatic.

[01:32:26] Speaker 05:
Well, you said it doesn't matter if the device has a capacity.

[01:32:29] Speaker 05:
You change your position now?

[01:32:31] Speaker 01:
No, the note has to be the capacity to dial numbers without human intervention.

[01:32:35] Speaker 01:
That's one of the things that has to have the capacity to do it.

[01:32:37] Speaker 03:
Even if the human, in fact, does the dialing.

[01:32:39] Speaker 01:
Yes.

[01:32:39] Speaker 03:
As long as the capacity exists to do it automatically, that's enough for you as between two numbers.

[01:32:44] Speaker 01:
Yes.

[01:32:44] Speaker 01:
So speed dial.

[01:32:45] Speaker 01:
Speed dial is a way of more quickly calling one number at a time, not an autodialer.

[01:32:51] Speaker 01:
If you have something that is calling a bunch of numbers in seriatim, go iterating through them, we think that fits the language here as an autodialer.

[01:33:00] Speaker 03:
Now, I think it's also- It doesn't matter how small the data list, the stored list is.

[01:33:05] Speaker 03:
It doesn't matter how intelligently the stored list is formulated, how non-randomly the stored list is formulated.

[01:33:11] Speaker 03:
If someone asks, if I need a phone number for a friend and I say, and I tell somebody who I think knows that person, hey, can I have that person's number?

[01:33:21] Speaker 03:
And they say, here's their work number and their home number.

[01:33:25] Speaker 03:
So they give you two numbers.

[01:33:27] Speaker 03:
then now you've got a data set of two numbers.

[01:33:29] Speaker 03:
If my equipment has the capacity to randomly pick between those two numbers, that's within the fold of the statute.

[01:33:36] Speaker 01:
It would have to call more than one at a time.

[01:33:38] Speaker 01:
If it randomly chose which one to call first, but called one and then called the other, calling numbers, plural, then it would be an autodialer.

[01:33:46] Speaker 01:
Now we tried hard and we can't think of any consumer equipment that we're aware of in this record or that we're aware of otherwise that goes calling through a list of numbers automatically without the human intervening and telling it to make the next call.

[01:33:59] Speaker 07:
I actually think there is such a thing.

[01:34:01] Speaker 07:
I can get an app.

[01:34:02] Speaker 07:
put it on my smartphone when I'm driving and if I if I did drive to work and I had a long commute I could put in half dozen family members who I thought would be great to talk to and without intervening have it dial through and find the person that was available to talk to me when I'm done talking to them it would automatically dial the next.

[01:34:22] Speaker 01:
So I think if you downloaded that app, or as Judge Edwards has looked at it, if you're using that app, that would be an auto-dialer under this statute.

[01:34:29] Speaker 01:
I think we have to agree with that.

[01:34:30] Speaker 07:
But you also haven't passed on that because nobody's brought that to your attention.

[01:34:34] Speaker 01:
Nobody's brought that to our attention.

[01:34:36] Speaker 03:
And how is that using a random or sequential number generator?

[01:34:42] Speaker 01:
The generator part.

[01:34:45] Speaker 01:
We have a footnote on a brief that explains that generating, there's nothing that requires the generator to be some distinct identifiable component here.

[01:34:54] Speaker 01:
And generating sequential numbers is as simple as adding one, adding one, or if you're going through a list, take the first item in the list, then the second item in the list, and the third item on the list.

[01:35:03] Speaker 03:
So Judge Pillard's hypo, which sounds like it's not as much a hypo as it is something that could really happen, the generation is happening because

[01:35:12] Speaker 03:
The functionality of the device is, in your view, generating a sequence of numbers that are going to be called 1 through 6.

[01:35:21] Speaker 01:
Yes, and you can look at this with commercial telemarketing equipment.

[01:35:25] Speaker 01:
I think it's no different if a commercial telemarketer has any list of numbers.

[01:35:29] Speaker 01:
And the petitioner's interpretation here, they want to talk about situations where business is calling its own list of customers.

[01:35:35] Speaker 01:
I think there are other solutions to that, such as getting consent.

[01:35:38] Speaker 01:
But their approach that would read out calling any stored list of numbers in the statute would mean the statute exempts calls made to a list of complete strangers.

[01:35:47] Speaker 01:
It would exempt calls made to a list of numbers purchased from a commercial data broker.

[01:35:51] Speaker 01:
I think the policy stakes are clear.

[01:35:55] Speaker 07:
I mean, I thought that one aspect of your reasoning was that the generation was generating the number, meaning which of the telephone numbers was to be called, and that if I have a big pool and I want to call, let's say, the biggest spending family first and then go down the line in that sequence,

[01:36:20] Speaker 07:
that that would be covered by a sequential number of equipment sequencing the numbers to be called.

[01:36:30] Speaker 01:
Is that?

[01:36:31] Speaker 01:
I think that any equipment that has the capacity to call numbers in algorithmic order.

[01:36:37] Speaker 01:
That's what I'm asking.

[01:36:38] Speaker 01:
Also is going to have the capacity to iterate through them, to do it by the algorithm being add one, add one, and go through the list of each index.

[01:36:45] Speaker 07:
But I think without even the add one,

[01:36:47] Speaker 07:
That could be a sequential number generator.

[01:36:49] Speaker 01:
Yes.

[01:36:50] Speaker 01:
Yes.

[01:36:50] Speaker 01:
So I think that is a sequence.

[01:36:51] Speaker 07:
Because it's generating numbers to be called.

[01:36:52] Speaker 07:
It doesn't have to rewrite the digits in the called number.

[01:36:56] Speaker 01:
No, no, no.

[01:36:56] Speaker 07:
Do you think it does?

[01:36:58] Speaker 01:
I think that's correct.

[01:36:59] Speaker 01:
And I don't think sequential.

[01:37:01] Speaker 01:
A sequence is not limited to calling things in linear order, one by one by one.

[01:37:06] Speaker 01:
If you were calling all prime numbers, or every odd number, or some hopscotch variation.

[01:37:14] Speaker 07:
29 could be the sequence.

[01:37:16] Speaker 01:
I think these would all be situations that would qualify.

[01:37:18] Speaker 03:
Any order is a sequence in your view by definition.

[01:37:22] Speaker 03:
I think any order that's... Any order of numbers is a sequence.

[01:37:26] Speaker 01:
What's non-sequential?

[01:37:27] Speaker 01:
or at least there would be the capacity to call.

[01:37:30] Speaker 05:
Wait, wait, so what is non-sequential?

[01:37:32] Speaker 01:
So non-sequential might be random, or might be if you're not either.

[01:37:37] Speaker 05:
No, it's neither sequential nor random.

[01:37:39] Speaker 05:
That's the next question.

[01:37:40] Speaker 05:
It's non-random non-sequential.

[01:37:42] Speaker 01:
So I think in that situation, if you had a human

[01:37:45] Speaker 01:
caller who was going through one by one and selecting them rather than the machine, selecting numbers and dialing them automatically, or this might point towards.

[01:37:53] Speaker 03:
I don't know why a human makes it any less sequential.

[01:37:55] Speaker 03:
It might be something.

[01:37:56] Speaker 03:
There might be something else in the statute that precludes the human interjection.

[01:37:59] Speaker 01:
Well, I think this can also point towards the other interpretation we've put forth, which is that it might be this language modifies produce.

[01:38:06] Speaker 03:
But I think it's.

[01:38:07] Speaker 03:
So on the not that interpretation, but the one that we've been focused on, which is that it modifies called,

[01:38:14] Speaker 03:
Usually when that interpretation is propounded, the comma is eliminated because it looks, it's more amenable to that interpretation when there's no comma between called, comma, using.

[01:38:28] Speaker 03:
But there is a comment there.

[01:38:29] Speaker 01:
So I think this goes back to our basic submission, which is that in our view, this is an ambiguous statute.

[01:38:34] Speaker 01:
There's a lot of difficulties with trying to construe this.

[01:38:37] Speaker 01:
And no one has offered a single perfect construction, which I think is the burden that the petitioners have taken upon themselves in arguing that this unambiguously forecloses our interpretations.

[01:38:46] Speaker 01:
I think this also goes to a question that was asked earlier about ratification.

[01:38:50] Speaker 01:
Because I think even to this question about what this can.

[01:38:53] Speaker 03:
I want you to get to ratification, which is before you get to that.

[01:38:56] Speaker 03:
Even if it's true that the statute's ambiguous, it also can be true that the statute unambiguously precludes your interpretation.

[01:39:03] Speaker 03:
So it doesn't seem to me enough for you to get home to say that the statute's ambiguous.

[01:39:10] Speaker 01:
So I think that's generally right.

[01:39:12] Speaker 01:
I would say there's two limitations.

[01:39:14] Speaker 01:
Number one is that if the petitioners are arguing the statute unambiguously prohibits our view, I think they've got to come forth and present an interpretation that doesn't have any greater problems than they're alleging our interpretation has.

[01:39:28] Speaker 01:
And I think their interpretation has a number of problems.

[01:39:31] Speaker 01:
They want to modify store produce.

[01:39:33] Speaker 01:
They have a problem because this language can't modify store.

[01:39:35] Speaker 01:
And I think they have problems because

[01:39:38] Speaker 01:
as policy matter, the interpretation they're pushing for, it doesn't make any sense why Congress would have treated random or sequential numbers differently from every other list that's out there.

[01:39:49] Speaker 01:
Now, I think that if I can turn to this ratification point, because I do think it's important,

[01:39:54] Speaker 01:
There are three instances we point out in our brief where I think Congress has ratified our interpretation of the statute.

[01:39:59] Speaker 01:
I think the most clear-cut example is the Bipartisan Budget Act amendments from last October.

[01:40:04] Speaker 01:
And those came not only after the 2003 and 2008 orders, they came after this order, and Congress was aware of this order.

[01:40:11] Speaker 01:
And those amendments exempted from the pre-recorded call and auto-dial the restrictions, any call made to collect a government-backed debt.

[01:40:19] Speaker 01:
And as I think the court recognized earlier, debt collectors, if they're covered, they're not dialing random or sequential numbers.

[01:40:25] Speaker 01:
They're calling a stored list of numbers of people who owe them debt.

[01:40:29] Speaker 01:
So this language wouldn't have made any sense, this amendment, if Congress didn't understand and agree with our view.

[01:40:36] Speaker 01:
And I just want to take a brief

[01:40:37] Speaker 01:
side track here because there's a discussion of Commissioner Pai's dissent and I do think Commissioner Pai agrees with us on this functions issue and I'd point out that there's a portion of his dissent where where he says we should be focusing on the bad guys and he specifically identifies debt collectors as some of the bad guys he should get under the statute and just like with this amendment

[01:40:58] Speaker 01:
It indicates that there's an understanding this has to be able to reach devices that dial a stored list of numbers.

[01:41:03] Speaker 01:
And the petitioners, as I read their reply brief, have kind of a muddled response to suggest this might have just been precautionary.

[01:41:10] Speaker 01:
I don't think that's right.

[01:41:11] Speaker 01:
I think it clearly demonstrates two things.

[01:41:13] Speaker 01:
I think, number one, it clearly shows that Congress is aware of our interpretation, that this applies to debt collectors, people calling stored lists of numbers.

[01:41:22] Speaker 01:
And number two, that rather than overrule our interpretation, Congress accepted it and made changes that depend on it.

[01:41:29] Speaker 01:
And I think that amounts to ratification.

[01:41:32] Speaker 01:
And the other thing they said here is that they say, well, maybe that's just about the pre-recorded voice language.

[01:41:36] Speaker 01:
Well, I understand if you're billing someone, you want to let them know they owe a bill, you might use a pre-recorded voice call to get that notification.

[01:41:45] Speaker 01:
But debt collection, you've got someone who isn't paying.

[01:41:48] Speaker 01:
You're looking to reach the actual person.

[01:41:50] Speaker 01:
The import here was not pre-recorded calls.

[01:41:53] Speaker 01:
This was auto-dialed calls.

[01:41:55] Speaker 01:
Now, I think another instance of ratification, which is worth looking at, is the bill that was HR 3035, and that was discussed by my friends on the other side.

[01:42:03] Speaker 01:
And I want to be clear, because I don't think it was accurately described earlier.

[01:42:07] Speaker 01:
That was a bill that would have done just two things.

[01:42:10] Speaker 01:
And number one, it would have rewritten the autodialer definition to read as the petitioners want to read it.

[01:42:16] Speaker 01:
And second, it would have preempted state laws to preclude states from readopting our approach on a state-by-state basis.

[01:42:23] Speaker 01:
And Congress held a hearing on that bill, and there was overwhelming opposition, and the sponsors had to withdraw the bill.

[01:42:29] Speaker 01:
And the petitioners make this familiar but I think simplistic argument that we can't infer anything here because Congress might fail to pass a bill for any number of reasons that might not have anything to do with the merits.

[01:42:40] Speaker 01:
But here we know why Congress rejected this bill because the sponsors have told us.

[01:42:45] Speaker 01:
Because they withdrew the bill in a letter stating, quote, we have heard from our constituents and there is no hope for this legislation.

[01:42:54] Speaker 01:
So this was a clear attempt to rewrite the law the way that the petitioners want the court to now reconstrue it and Congress rejected it.

[01:43:00] Speaker 01:
And the third instance of ratification we've directed the court to is this 2012 legislation setting up the Public Safety Answering Point Registry.

[01:43:07] Speaker 01:
And that legislation directed the FCC to regulate automatic dialing or robocall equipment.

[01:43:14] Speaker 01:
And those terms aren't defined by Congress anywhere, but they're terms of art that are frequently used in FCC orders to describe equipment that we understand to be covered by the TCPA.

[01:43:24] Speaker 01:
So I think, again, this shows that Congress was aware of our orders, embraced it, and used this as the basis for overlapping legislation.

[01:43:32] Speaker 01:
So I think if there's any question about how Congress understands this language, and at this point, this is a pretty clear-cut case that we've been interpreting the law this way since 2003, and Congress ratified it.

[01:43:45] Speaker 03:
It's one thing to do ratification where there's enacted text, which even that, you've got to ask some questions about why the text was enacted.

[01:43:52] Speaker 03:
It seems like another thing to do ratification with respect to unenacted text.

[01:43:57] Speaker 01:
Well, if I'm correctly understanding your honor's question, I think that goes only to the bill that Congress rejected.

[01:44:05] Speaker 01:
But these other two examples, those are situations where Congress enacted text.

[01:44:09] Speaker 01:
So certainly those two, and certainly these bipartisan Budget Act amendments, indicate that Congress understood we have been applying this language to debt collectors.

[01:44:18] Speaker 01:
And debt collectors are not using random or sequential lists.

[01:44:21] Speaker 01:
They're using fixed lists.

[01:44:22] Speaker 03:
And then I think the question becomes whether Congress might have

[01:44:26] Speaker 03:
been imputed to have had that understanding, and then the question becomes whether by enacting text, Congress necessarily ratified that understanding, or were they just ratifying the fact about the world that you have that interpretation, and that that's something yet to be worked out through the process of judicial review?

[01:44:41] Speaker 03:
That's always the question with ratifications.

[01:44:43] Speaker 01:
Well, I think when it's teed up this squarely, I think that if they disagreed with our interpretation, I mean, they were making an amendment to exempt some devices.

[01:44:51] Speaker 01:
And you could have done that in one of two ways.

[01:44:53] Speaker 01:
You could have done that by rewriting the statute to overturn our interpretation, or you could have accepted our interpretation and enacted this narrow carve out.

[01:45:01] Speaker 01:
And that's what happened here.

[01:45:02] Speaker 03:
Maybe we should talk about called party?

[01:45:06] Speaker 01:
If I can make just one more point while we're on the question of the functions of an autodialer.

[01:45:12] Speaker 01:
Because we do note in our brief, it's not clear to us that this question is properly before the court.

[01:45:17] Speaker 01:
And the petitioner's response, as I understand it, is they say it's before the court, the merits of this question, because some of the petition supposedly asked the agency to address it.

[01:45:26] Speaker 01:
And that's not right.

[01:45:27] Speaker 01:
I've gone back and I've read all the petitions they point to.

[01:45:30] Speaker 01:
And it's not evident that any of those were asking us to address the underlying functions of an autodialer, as distinct from this question about the meaning of capacity.

[01:45:39] Speaker 01:
None of them asked us to address the other elements, and in fact, they point repeatedly for this to the PACE petition.

[01:45:44] Speaker 01:
Well, if you take a look at footnote 14 of the PACE petition, it's at page 237 of the Joint Appendix.

[01:45:50] Speaker 01:
That footnote acknowledges that the commission has addressed this issue in the past orders, the 2003 and 2008 orders, and it expressly disclaimed asking the commission to revisit them here.

[01:46:01] Speaker 01:
So I think this is really an untimely challenge to our orders from 2003 and 2008, and I think that the agency's decision not to revisit those.

[01:46:09] Speaker 03:
Did the designing commissioners make that argument, or did they treat with a merits of?

[01:46:13] Speaker 01:
I think as far as the functions of an autodialer go, I think that your honor is correct that they accepted this is the long-standing, fixed, settled interpretation that this statute is not limited to lists of random or sequential numbers.

[01:46:29] Speaker 03:
But they didn't, I didn't read anybody in dissent to say that we can't even get to that issue because it's asked and answered and so it's not before us.

[01:46:38] Speaker 01:
Nobody in dissent spoke to the issue because the issue wasn't before us.

[01:46:41] Speaker 01:
I think it actually proves the point.

[01:46:43] Speaker 01:
Now turning to, I believe your honor was asking about the reassigned numbers.

[01:46:49] Speaker 03:
Yeah, call party.

[01:46:50] Speaker 01:
Yes, well, so I think call party, I think that's the right way to look at it.

[01:46:52] Speaker 01:
I think we need to keep in mind that the actual legal question that was presented to the agency here was about the meaning of call party.

[01:47:01] Speaker 01:
I'd refer the court to Judge Easterbrook's decision for the Seventh Circuit in Socket, which explains the TCPA uses this phrase, called party, in roughly five other places, and every one of them refers to the person either paying for or using the telephone.

[01:47:15] Speaker 01:
I'd also direct the court to the congressional findings in Section 2 of the TCPA, which say that it's generally the receiving party who must consent to the calls.

[01:47:24] Speaker 01:
And the petitioners have been taking the position that ordinary usage for closeness is interpretation.

[01:47:30] Speaker 01:
I actually think this is entirely consistent with ordinary usage.

[01:47:34] Speaker 01:
And for example, it was my grandmother's 93rd birthday on Monday.

[01:47:38] Speaker 01:
And the next time I speak with my mom, she's going to ask me, did you call your grandma for her birthday?

[01:47:42] Speaker 01:
And if it turns out that I tried to call my grandmother, but I had the number wrong,

[01:47:46] Speaker 01:
and I wound up only reaching a stranger and never spoke with my grandmother.

[01:47:49] Speaker 01:
I'm not going to be able to tell my mom that I called my grandma.

[01:47:52] Speaker 01:
I might have tried to do so, but the person who I actually called, the call party, would be this wrong number stranger.

[01:48:00] Speaker 01:
Now, as for reassigned numbers, we've acknowledged that there may be some residual category of some subset of reassigned numbers that are very difficult to detect.

[01:48:11] Speaker 01:
And so the agency had to balance the interest here of callers and of consumers.

[01:48:17] Speaker 01:
And we struck that balance reasonably by saying that callers are responsible for calls made to reassigned numbers subject to a one call safe harbor.

[01:48:25] Speaker 03:
So as I read your order,

[01:48:28] Speaker 03:
And the order accepts the proposition that constructive knowledge is germane.

[01:48:33] Speaker 03:
And then it says we deem, I think the commission used the word deem, we deem constructive knowledge to exist when one call has been made.

[01:48:40] Speaker 03:
And the question is,

[01:48:42] Speaker 03:
In any conventional understanding of constructive knowledge, how does constructive knowledge exist in the example of a text to which there's no response?

[01:48:51] Speaker 01:
So I think I agree with this 100%.

[01:48:53] Speaker 01:
I think there may be some semantic confusion over that language.

[01:48:57] Speaker 01:
And maybe it would have been helpful to use different language.

[01:49:00] Speaker 01:
But this is a deeming rule.

[01:49:01] Speaker 03:
And that word deem appears to agree that under a conventional understanding of constructive knowledge, there is no constructive knowledge when a text is sent out and there's no response.

[01:49:09] Speaker 01:
For that very, I think, yes, there's a small category of numbers we've acknowledged.

[01:49:14] Speaker 01:
If there's not knowledge available elsewhere, I want to turn to that in a minute, but what this says here is we deem you to have knowledge, we deem you to have constructive knowledge, whether or not you actually do.

[01:49:25] Speaker 03:
So then the question becomes this in my mind at least, which is that we know from the statute that Congress thought there was an affirmative value in consent.

[01:49:33] Speaker 03:
They thought that once consent has been obtained, those are texts.

[01:49:37] Speaker 03:
Let's just stay in the world of texts, even though they may not have existed in 91, but we now think they did.

[01:49:43] Speaker 03:
So let's just stipulate to the proposition that Congress thought there was an affirmative good in a caller obtaining consent to send a text, and then sending the text because that's information that the recipient by hypothesis wants to receive.

[01:49:58] Speaker 03:
And so we're in this situation in which the caller, through every good faith, thinks it's enacting entirely consistently with congressional intent, because it's sending a text to someone it believes expressly consented to receive the text.

[01:50:13] Speaker 03:
And then it turns out, entirely without knowledge to the caller, the number got reassigned.

[01:50:19] Speaker 03:
Do we think that Congress thought in that situation that every text sent to that

[01:50:24] Speaker 03:
presumed consentor is a $500 violation?

[01:50:28] Speaker 01:
So I want to answer this in two ways, but I think the first is that there is a countervailing consideration here, which is that

[01:50:35] Speaker 01:
Taking the expected recipient approach that's been proposed here would really turn the TCP on its head by requiring the innocent new subscriber to reassign numbers to be bombarded by these calls and have to figure out how to call and opt out of these.

[01:50:55] Speaker 01:
So the other response I want to give, yes, we have acknowledged there is some category of numbers for which the balance we've struck may mean that those can't be detected.

[01:51:05] Speaker 01:
And someone has to bear that risk, either the caller or the consumer.

[01:51:09] Speaker 01:
And what we said is that if the caller is choosing to use automated technology, which they don't have to use, but they're choosing to use that technology, then it should be that caller

[01:51:18] Speaker 03:
Here's the question that I have about that, which is we're trying to understand at some level what Congress would have intended.

[01:51:23] Speaker 03:
And what we know about automated calling is that Congress intended that automated calls can be made in the circumstances of consent.

[01:51:31] Speaker 03:
And from the perspective of the caller, that's exactly the situation.

[01:51:34] Speaker 03:
It's a situation in which the caller acting entirely in good faith believes that it's making a call or sending a text that Congress wanted to have happen because we're not an opt-out world anymore.

[01:51:46] Speaker 03:
We're opt-in because there's been consent.

[01:51:48] Speaker 03:
So the option has been exercised and consent has been made.

[01:51:51] Speaker 03:
And then we're asking, what do we do in that set of situations?

[01:51:54] Speaker 03:
And in that set of situations, it seems difficult to draw – as understandable as the consumer protection interests are for recipients who don't want to be bombarded because they've been reassigned a number – I don't discount that for a moment – but we're also in a situation in which the caller, in every good faith, believes that they've gotten the opt-in because the consent has been made.

[01:52:16] Speaker 01:
So I guess there are three points I want to make.

[01:52:17] Speaker 01:
The first is that the TCPA, Congress didn't provide a good faith exception.

[01:52:22] Speaker 01:
Could have, there's actually been discussion of it recently as I understand it in Congress, but Congress didn't provide a good faith exception.

[01:52:27] Speaker 01:
The second is that this is a consumer protection statute.

[01:52:31] Speaker 01:
It's the Telephone Consumer Protection Act.

[01:52:32] Speaker 01:
So we acknowledge there are some hard questions here.

[01:52:35] Speaker 01:
There are difficult issues, and someone is going to have to bear a risk.

[01:52:39] Speaker 01:
And given the nature of the statute, I don't think it's unreasonable to say that it shouldn't be the innocent consumer who bears the risk.

[01:52:45] Speaker 01:
It should be the caller.

[01:52:46] Speaker 01:
And the third point that I want to make is that

[01:52:49] Speaker 01:
I think this concern about reassigned numbers that's coming from the other side has been grossly exaggerated for at least three reasons, and I really think it's helpful to discuss these.

[01:52:58] Speaker 01:
The first is that most people don't sue over a wrong number call.

[01:53:01] Speaker 01:
They ask the caller to stop calling, and they hang up.

[01:53:04] Speaker 01:
And that solves the problem, at least if they're obeying our rules for revocation of consent.

[01:53:08] Speaker 01:
Second is that, as I think the court recognized earlier... I'm sure someone answers the phone.

[01:53:13] Speaker 05:
A lot of times, this will just go to an answering machine.

[01:53:17] Speaker 01:
Yes, but most consumers, it might go to an answering machine if they call again.

[01:53:21] Speaker 05:
Once the consumer answers the phone, most people are... I thought you were pretty much acknowledging there are a lot of calls that are going to fall into the category the other side is concerned about.

[01:53:31] Speaker 05:
I don't think it's a small number.

[01:53:33] Speaker 05:
A lot of times, to get a no answer one time, you may get it two, three more times.

[01:53:38] Speaker 05:
And it tells you nothing other than you heard someone say, I'm not available right now.

[01:53:42] Speaker 01:
So this first point I'm making is that if no one sues, it's not a concern.

[01:53:46] Speaker 01:
And most people, I get a lot of these calls.

[01:53:49] Speaker 01:
You know, I've never gotten sued someone over.

[01:53:51] Speaker 03:
Doesn't the record, even the orders, talk about situations in which these suits are manufactured?

[01:53:56] Speaker 03:
I'm not talking about the incidents.

[01:53:57] Speaker 03:
You may be right that they don't arise very often.

[01:54:00] Speaker 03:
But it looks like this does happen, that suits are filed based on

[01:54:03] Speaker 03:
reassigned numbers.

[01:54:05] Speaker 01:
So I'm not denying that it happens.

[01:54:07] Speaker 01:
But we do think it is not the scope of this problem is not what I think has been made out to be.

[01:54:13] Speaker 01:
So I think two more reasons.

[01:54:15] Speaker 01:
You said most people don't sue.

[01:54:16] Speaker 01:
Yes.

[01:54:16] Speaker 01:
Most people don't sue.

[01:54:18] Speaker 01:
Second, the court recognized this earlier.

[01:54:19] Speaker 01:
The order discusses a number of measures that callers can take to detect when most numbers have been reassigned.

[01:54:27] Speaker 01:
There's seven of them listed as best practices in paragraph 86 of the order.

[01:54:31] Speaker 01:
It's at page 1191 of the joint appendix.

[01:54:33] Speaker 01:
For example, when a number is relinquished, it isn't reassigned right away.

[01:54:38] Speaker 01:
There's a 30 to 90 day waiting period.

[01:54:41] Speaker 01:
And during this time, anyone who tries to reach this number will hear a triple tone, or if they text, they'll receive an undeliverable notice.

[01:54:48] Speaker 01:
So callers can configure their systems.

[01:54:49] Speaker 03:
So maybe that's constructive knowledge.

[01:54:51] Speaker 03:
In that situation, it seems to me the FCC could say, we deem that to be constructive knowledge.

[01:54:56] Speaker 03:
And one might think that actually that jives with a conventional understanding of constructive knowledge.

[01:55:01] Speaker 03:
Because if it's true, I take it to be true based on your

[01:55:03] Speaker 03:
submission that there's a different dial tone you receive or there's a particular message you receive in the situation of attacks.

[01:55:09] Speaker 01:
So I agree with your honor, but a constructive knowledge approach wouldn't work because the person who later is receiving these calls has no idea what practices were or weren't followed before the number is assigned to them.

[01:55:20] Speaker 03:
The point is that the person, once you have constructive knowledge, the person won't be later receiving the calls if the caller is abiding by the statute because they can't make the calls anymore.

[01:55:28] Speaker 01:
Yes, we're concerned now.

[01:55:30] Speaker 07:
But how could it be asserted in litigation by the person who's later harassed?

[01:55:33] Speaker 01:
Yes.

[01:55:33] Speaker 01:
What is your point?

[01:55:34] Speaker 01:
It wouldn't be administrable.

[01:55:35] Speaker 01:
The person, if they cease calling upon hearing this tone, great.

[01:55:39] Speaker 01:
That's exactly what we say they should do.

[01:55:40] Speaker 01:
And that's what everyone wants.

[01:55:41] Speaker 03:
Or else they'd be violating the statute if they didn't cease calling.

[01:55:43] Speaker 01:
Exactly.

[01:55:43] Speaker 01:
Yes, Your Honor.

[01:55:44] Speaker 01:
And the third?

[01:55:45] Speaker 01:
Let me just, I want to quickly touch on some other measures that callers can take, and then I'll get to the third.

[01:55:51] Speaker 01:
Callers, we said, can train their phone operators to verify contact information any time they call someone or any time they receive a call.

[01:56:00] Speaker 01:
They can periodically verify contact information by other means on email or when a customer comes into the store.

[01:56:06] Speaker 05:
You know, in all due respect, I think there are probably a lot of business people out there saying, is he kidding me?

[01:56:13] Speaker 05:
It's not as straightforward as you're saying.

[01:56:24] Speaker 05:
the way we can operate reasonably, assuming they have the right to operate.

[01:56:29] Speaker 05:
It's just not a viable suggestion.

[01:56:31] Speaker 05:
It really isn't.

[01:56:32] Speaker 05:
I mean, and the business people are involved.

[01:56:34] Speaker 05:
I realize it's a consumer statute, but the statute does pay some attention to the needs of people in the business community.

[01:56:41] Speaker 05:
And those suggestions seem silly to me.

[01:56:43] Speaker 05:
That isn't the way they're going to operate.

[01:56:45] Speaker 01:
So, Your Honor, we're hearing this, but there's no representation from any of the petitioners that they've stopped making calls since this order came out because they're concerned about it, which I think is another indication that this problem is not of the scope that they're saying.

[01:56:58] Speaker 05:
And to answer Judge Pillin's question... I think actually they did make that representation, but I don't know whether it's accurate.

[01:57:04] Speaker 05:
They've absolutely made the representation.

[01:57:05] Speaker 01:
I think there are some who represented who, before this order ever came out, they hadn't made calls or they would, but I don't know they've made the representation that there are those who, up until this order, were making these calls and then stopped.

[01:57:18] Speaker 01:
And I'd point out that this is not something that was entirely new with this order.

[01:57:21] Speaker 01:
This, you know, two circuits in the, I believe it was the Seventh Circuit and the Eleventh Circuit.

[01:57:28] Speaker 01:
have both taken the view that called party means the person who's actually called and presumably this view to reassign numbers.

[01:57:34] Speaker 01:
So I think it's another indication the scope of this problem is not what it's being claimed to be.

[01:57:39] Speaker 01:
And the third one that I want to discuss is that there are now several commercial services that are able to track reassignments.

[01:57:46] Speaker 01:
And in the order, we pointed to a service that was provided by a company called New Star, which at the time claimed to be able to recognize upwards of 80% of reassignments.

[01:57:55] Speaker 01:
And we predicted that, following this order, there would be strong incentive for the industry to perfect these tools, just as they did when we faced an analogous problem in the early 2000s, when you were first able to port numbers from landline phones to wireless phones.

[01:58:08] Speaker 01:
And Caller said, there's greater restrictions on wireless phones.

[01:58:11] Speaker 01:
How are we to know when this has happened?

[01:58:13] Speaker 01:
And they asked us to accept a good faith exception, and we declined to do so.

[01:58:18] Speaker 01:
And New Star developed a service that could detect these, and it solved it.

[01:58:21] Speaker 01:
And if I can go beyond the record for just a minute?

[01:58:24] Speaker 03:
It's 80%.

[01:58:25] Speaker 01:
At the time of the order, the claim was 80%.

[01:58:28] Speaker 01:
Now, this requires me to go beyond the record, but we are now aware of at least five different companies offering reassigned number detection services that all advertise they can detect between 95% to 99% accuracy or higher.

[01:58:43] Speaker 03:
We appreciate you bringing that to our attention.

[01:58:45] Speaker 03:
Obviously, we have to judge the order based on the evidence that you had before.

[01:58:49] Speaker 03:
that you at the time.

[01:58:50] Speaker 01:
I think the court owes a measure of deference to the FCC's predictive judgment.

[01:58:56] Speaker 01:
It's an expert judgment from the expert agency that administers these things, and that didn't come from nowhere.

[01:59:02] Speaker 01:
That was based in part on past experience, or we had an analogous problem.

[01:59:05] Speaker 03:
So can I ask this question, though?

[01:59:07] Speaker 03:
That's not foolproof.

[01:59:08] Speaker 03:
And I take your point that your point is it was not far from foolproof before, and it's getting closer and closer every day.

[01:59:14] Speaker 03:
But it's not as if there's no social cost

[01:59:17] Speaker 03:
to the allocation of risk that you would impose because the statute understandably presupposes that some people are going to want to receive text messages.

[01:59:29] Speaker 03:
And if your rule creates the incentive on callers to stop doing that because they're worried that the number might have been reassigned, then an affirmative good that the statute is trying to achieve would not be achieved because the callers are going to withhold making the calls.

[01:59:45] Speaker 01:
So Your Honor, we acknowledge there are trade-offs here.

[01:59:47] Speaker 01:
And you had to strike a balance.

[01:59:48] Speaker 01:
And this happens not just with the agency, it happens with everyday people.

[01:59:51] Speaker 01:
So I'm one of those people, if I get a call on my cell phone that I'm not expecting, and it's from a number I don't recognize, I usually won't answer that call.

[01:59:59] Speaker 01:
Now it might mean they try calling back two or three times, and I face a trade-off.

[02:00:03] Speaker 01:
I can answer this call now.

[02:00:04] Speaker 03:
and try to tell them to go away.

[02:00:07] Speaker 01:
So certainly answering calls, consumers, are never going to encounter this.

[02:00:14] Speaker 05:
And if it's your mother, you'd better answer.

[02:00:17] Speaker 01:
I did miss a happy birthday call from a family member the other day because they were calling from an unfamiliar number.

[02:00:23] Speaker 01:
That was the cost that I had to accept.

[02:00:25] Speaker 01:
But this is an area that's full of trade-offs, and the agency here, I think, made a reasoned decision.

[02:00:30] Speaker 01:
Now, the petitioners might not like the balance that we struck, but it was certainly a reasonable balance.

[02:00:35] Speaker 01:
And going back again to this underlying language that we were interpreting called party,

[02:00:40] Speaker 01:
I don't think you can say that that language unambiguously forecloses what we've done here.

[02:00:44] Speaker 01:
I think this is reasonable and consistent with the consumer protection purposes that underlie the statute.

[02:00:51] Speaker 01:
If the court doesn't mind, I would turn briefly to this question about revocation of consent, because it seems to me the petitioners here are really just subjecting to our reasonableness standard.

[02:01:01] Speaker 01:
And reasonableness is a familiar legal concept.

[02:01:04] Speaker 07:
Just before you move on, I just had a similar question for you that I had for the other side about how you actually envision the conscientious caller using the safe harbor efficiently to sort of maximize its

[02:01:19] Speaker 07:
ability to provide the information that they need.

[02:01:23] Speaker 07:
In other words, I can imagine, I mean, they were pushing back, I think, with some effect on my hypothetical about a voice call, but it's even harder to see in a text context how are you gonna use that safe harbor call to actually get information about whether the person's consenting.

[02:01:43] Speaker 01:
So one example, which I think points back to something pointed out earlier, if you're sending texts

[02:01:49] Speaker 01:
you know, once a month, then you're going to notice that this number's been reassigned because you'd get the undeliverable notice during the waiting period pending reassignments.

[02:01:58] Speaker 01:
So there are situations even with tech.

[02:02:00] Speaker 07:
So it's not necessarily depending on something that the recipient is going to do?

[02:02:02] Speaker 01:
Yes, yes.

[02:02:03] Speaker 01:
OK, that's helpful.

[02:02:04] Speaker 01:
There's also a question earlier, and I'm sorry, I can't remember which judge it came from, about whether former subscribers who are relinquishing a number will inform the caller

[02:02:14] Speaker 01:
And often they will.

[02:02:15] Speaker 01:
If it's your bank and you change your contact information, you want to update the bank.

[02:02:19] Speaker 01:
So I think it's another circumstance where if they are processing that request, they are not going to wind up calling a reassigned number.

[02:02:25] Speaker 01:
So there are costs, we acknowledge, but we think given the balance we had to strike, it shouldn't be the consumer who bears the full brunt of this.

[02:02:34] Speaker 01:
Now, on revocation of consent, as I was saying, I think this is just an objection to our reasonableness standard.

[02:02:39] Speaker 01:
And here, I think it's clear from the order that reasonableness usually boils down to two things.

[02:02:44] Speaker 01:
So number one, we say that the consumer must clearly express the desire not to receive future messages.

[02:02:49] Speaker 01:
And number two, the order says that the method of communicating that desire must be reasonable.

[02:02:54] Speaker 01:
I'll quote from the order here, this is from paragraph 64, it's at page 1179, that the consumer's method of communicating consent must be in such a way that, quote, callers typically will not find it overly burdensome to implement mechanisms to record and effectuate the consumer's request.

[02:03:11] Speaker 01:
So I think that a lot of the far-out hypotheticals the petitioners were tossing out in their brief, like complaining to the pizza delivery guy, wouldn't be covered under this.

[02:03:19] Speaker 01:
And they did make a statement, and I was a little confused by it, that the methods identified in the order they thought would sometimes be unreasonable, because that paragraph of the order, paragraph 64, gives three examples of situations where it would be reasonable to revoke consent by this means.

[02:03:33] Speaker 01:
One is in response to a call from the company.

[02:03:36] Speaker 01:
If they call you, it's reasonable to expect that you're going to say, stop calling me, and they'll honor it.

[02:03:42] Speaker 01:
Another is in response to a consumer-initiated call.

[02:03:45] Speaker 01:
So if the consumer calls the company back at their phone number and says, I don't want any more calls, that's reasonable.

[02:03:51] Speaker 01:
And the third example the order gives is going to an in-store bill payment location.

[02:03:55] Speaker 01:
And there we're talking about someone who's at a terminal, a terminal, and their job is to record information to accept payments.

[02:04:02] Speaker 01:
And in that circumstance, I think it's reasonable to expect that they're going to be able to record.

[02:04:06] Speaker 03:
For the second one, when you say call the company at their number, what does that mean?

[02:04:11] Speaker 03:
Because at least if it's a big company, there's going to be more than one number and more than one potential input.

[02:04:17] Speaker 01:
So I believe the order is envisioning situations where you call them back the number they called you from, see them caller ID.

[02:04:24] Speaker 01:
Now there may be other situations where you would have to consider, is it reasonable to call other numbers?

[02:04:29] Speaker 01:
If they publish a customer service number on their website, that sure seems like it may be reasonable.

[02:04:34] Speaker 01:
If you call some private line for the CEO that isn't listed anywhere, that might not be.

[02:04:39] Speaker 01:
But the point is the standard in the order.

[02:04:41] Speaker 01:
looks to whether it be overly burdensome in that situation for the business to implement mechanisms to report and effectuate consent.

[02:04:48] Speaker 01:
And I think that's pretty reasonable.

[02:04:51] Speaker 03:
So you read the standard.

[02:04:52] Speaker 03:
I've fastened on that overly burdensome language, too.

[02:04:55] Speaker 03:
But what the order says is callers typically will not find it overly burdensome, not that overly burdensome actually is a safe harbor.

[02:05:03] Speaker 01:
I think our understanding is that that is what reasonableness means in this concept, reasonableness.

[02:05:07] Speaker 01:
And reasonableness often understood in economic terms, what would be the cost of setting up a mechanism to do this?

[02:05:13] Speaker 01:
And if it wouldn't be that costly, it would be reasonable.

[02:05:15] Speaker 01:
If it became overly costly that it wasn't cost-justified to set up this mechanism, it would be unreasonable.

[02:05:21] Speaker 07:
Mr. Revick, can you explain or identify where the commission explained why it permitted specification of an exclusive means of revocation when the caller is a financial or health care

[02:05:31] Speaker 07:
caller and not when it's others?

[02:05:34] Speaker 01:
So those are situations where the commission has exempted calls from the TCPA and that exemption presupposes that we made a finding that these calls are so important they're worth setting aside consumer privacy interests and there are situations where the caller should be able to call even without having asked for consent.

[02:05:53] Speaker 01:
So I think it's reasonable that we strike a different balance when there's an exemption.

[02:05:57] Speaker 01:
The calls are that important.

[02:05:58] Speaker 01:
And in that situation, we may want to strike the balance that if sometimes if the consumer uses a reasonable means but not the correct one, that it wouldn't have to be tracked.

[02:06:08] Speaker 03:
Can I ask a question about

[02:06:10] Speaker 03:
I don't want to cut you off on your answer.

[02:06:13] Speaker 03:
On revocation, it tracks a little bit back to the question about call parties, but just a factual question, which is this.

[02:06:19] Speaker 03:
When you're in a situation in which you have the customary user, so you have more than one user who's potentially affiliated with a phone number, the subscriber consents, if a non-subscriber customary user

[02:06:36] Speaker 03:
gets the call and then responds and say, I don't want these calls anymore.

[02:06:41] Speaker 03:
Is that revocation?

[02:06:42] Speaker 01:
I think if, as far as the caller is aware, that this is someone who is authorized to use this line and there's every reason to think so if they're calling you from it, yes.

[02:06:52] Speaker 01:
Now, if there's concern about maybe incorrect revocation, you might, first of all, our soundbite order says that a confirmation message isn't covered by the TCPA.

[02:07:03] Speaker 01:
So one message say, we received your unsubscribe request.

[02:07:06] Speaker 01:
There's no liability for that.

[02:07:07] Speaker 01:
That's a soundbite declaratory ruling, which is cited in our brief.

[02:07:10] Speaker 01:
I think also you might communicate by sending an email to the customer, if you have their email address, letting them know you've unsubscribed them.

[02:07:18] Speaker 01:
So there are measures that can be taken to make sure that accidental unsubscriptions don't happen.

[02:07:23] Speaker 01:
And I want to return to another thing that I thought was a remarkable claim that was being made here, which is petitioners claim that when they send out messages, they don't want to have to have someone actually review the responses.

[02:07:35] Speaker 01:
And I think that's directly at odds with the purposes of the TCPA.

[02:07:39] Speaker 01:
And we point out in our brief, if you look at the Senate report,

[02:07:42] Speaker 01:
The Senate report explains that Congress wanted consumers to be able to reach live operators because, quote, automated calls cannot interact with the consumer except in preprogrammed ways and do not allow the caller to feel the frustration of the called party.

[02:07:55] Speaker 01:
So what the petitioners are saying they want to be able to do, which is to send out messages and never have anyone available to see a response, is exactly what the TCPA was trying to forbid.

[02:08:05] Speaker 01:
And before turning off of revocation of consent, there was a question earlier about these contractual situations.

[02:08:11] Speaker 01:
And I want to address our position, which is set forth in footnote 16 of our brief.

[02:08:16] Speaker 01:
So what I understand this order to be addressing is situations where the caller unilaterally designates a particular exclusive revocation procedure.

[02:08:25] Speaker 01:
So I don't understand this order to address the situation where contracting parties freely negotiate and settle upon some particular procedure by mutual agreement.

[02:08:34] Speaker 01:
Now that doesn't necessarily mean that all contractual agreements fall outside of the order.

[02:08:38] Speaker 01:
I think if you have a contract of adhesion that's being offered on a take it or leave it basis, that looks an awful lot like the caller designating an exclusive means of revocation.

[02:08:47] Speaker 01:
But this order doesn't reach situations where there is in fact a true mutual agreement to use some other means.

[02:08:53] Speaker 07:
Isn't that every single contract in the areas we're talking about?

[02:08:57] Speaker 01:
I don't think so, Your Honor.

[02:08:58] Speaker 01:
So for instance, a lot of these that we're talking about are debt collection calls.

[02:09:02] Speaker 01:
And if this is a sizable debt, if you're taking out a loan for hundreds of thousands of dollars, a home mortgage loan, there are circumstances where those are negotiated.

[02:09:15] Speaker 01:
In any event, the burden.

[02:09:17] Speaker 07:
Not in my experience in the mortgage market.

[02:09:19] Speaker 01:
I think in any event, the burden would be on the company if it wants to have an exclusive revocation procedure to make sure that this was freely negotiated.

[02:09:30] Speaker 01:
And if they can't or don't, if they're choosing to dictate a take it or leave it basis, this is the exclusive way to do it.

[02:09:35] Speaker 01:
We think that is going to impinge upon consumers' rights under the DCPA.

[02:09:40] Speaker 01:
And I don't think there's anything that prohibits that.

[02:09:42] Speaker 01:
Even in this contracting situation, the petitioner's argument seems to come down to this extreme position that any statutory right can just be waived away by contract unless the statute unambiguously prohibits waiver.

[02:09:55] Speaker 01:
And I don't think any of the authorities they cite supports that extreme proposition, and I don't think it's correct, and I'll point out the Third Circuit rejected it in gauger.

[02:10:03] Speaker 01:
The Third Circuit there was addressing the very same revocation of consent issue that's presented here, and it said Dell's argument that its contractual relationship with Gaiger somehow waives her rights to revoke consent under the TCPA is incorrect.

[02:10:17] Speaker 01:
I think instead the question of whether statutory rights can be waived is simply a question of statutory interpretation.

[02:10:23] Speaker 05:
Are you saying as a condition of consent, the call is going to require that you're going to follow this arrangement for revocation?

[02:10:31] Speaker 01:
I think that you can't designate an exclusive means and refuse to accept other.

[02:10:38] Speaker 05:
As a condition of consent.

[02:10:39] Speaker 05:
Yes.

[02:10:40] Speaker 05:
For the receiver to say, well, I won't consent, and then I'm protected.

[02:10:43] Speaker 01:
No, Your Honor, no.

[02:10:44] Speaker 05:
I know you're saying no, but why?

[02:10:45] Speaker 05:
Why is that wrong?

[02:10:47] Speaker 01:
I'm sorry, can you rephrase the question?

[02:10:49] Speaker 05:
I'm not sure I understood it.

[02:10:49] Speaker 05:
As a condition of getting the consent, the agreement would be if you're going to revoke, you have to do it this way.

[02:10:56] Speaker 05:
Otherwise, don't give your consent, go away.

[02:10:58] Speaker 01:
So I'll answer that in two ways.

[02:11:01] Speaker 01:
Number one is that, and we have rules that address this, which aren't at issue here, but have been addressed in other orders.

[02:11:06] Speaker 01:
So there's two types of consent that might be required.

[02:11:09] Speaker 01:
There are some circumstances where you're just subject to the statutory standard, and there are certain situations where you're subject to the heightened written consent requirements.

[02:11:18] Speaker 01:
Calls that are made for telemarketing or contained advertisement

[02:11:21] Speaker 01:
are subject to that heightened standard.

[02:11:24] Speaker 01:
And in those situations, we've said, you can't condition the availability of service on the consumer's consent to receive calls.

[02:11:33] Speaker 01:
So number one, I think there are many situations where we've said you can't do that.

[02:11:36] Speaker 01:
But number two, I think it's reasonable, filling in the gaps in this.

[02:11:40] Speaker 03:
I think John Devereux is not talking about conditioning the availability of service.

[02:11:42] Speaker 03:
He's talking about conditioning the consent, which is to say, this is just a bargain we strike with respect to consent.

[02:11:47] Speaker 03:
And in some ways, it's inimical to the caller's interests, because they're going to say,

[02:11:51] Speaker 03:
OK, I'll begrudgingly accept your consent, but only if you agree that you can only revoke the consent in the following ways.

[02:11:59] Speaker 01:
I think it would fall under the exact same logic that appears in this order, which is that for consent to be meaningful, you have to be able to revoke it.

[02:12:06] Speaker 01:
You can't be locked in forever to receiving these calls that you don't want.

[02:12:10] Speaker 01:
And I think similarly here, if there's mention.

[02:12:12] Speaker 05:
Why would this consent not be meaningful?

[02:12:15] Speaker 01:
So our basic concern.

[02:12:17] Speaker 05:
All right, you're saying to me, you know,

[02:12:21] Speaker 05:
If you want to revoke it, here's how you have to do it.

[02:12:25] Speaker 05:
Otherwise, go away.

[02:12:26] Speaker 05:
I don't want your consent.

[02:12:27] Speaker 05:
What's wrong with that?

[02:12:30] Speaker 05:
You can still get the services.

[02:12:34] Speaker 07:
I mean, what we're talking about is consent to notifications.

[02:12:36] Speaker 07:
So I say to Rite Aid, oh, I've got so many health problems.

[02:12:41] Speaker 07:
Tell me about all the products you think will be great for me.

[02:12:44] Speaker 07:
And I want that.

[02:12:46] Speaker 07:
And Rite Aid says, great, happy to have you.

[02:12:49] Speaker 07:
By the way, if we're going to put you on our contact list, you can get off at any time.

[02:12:56] Speaker 07:
When you want to get off it, do it this way.

[02:12:59] Speaker 07:
And I say, oh, I'm never going to remember that.

[02:13:05] Speaker 07:
So what's the issue there?

[02:13:06] Speaker 01:
So we've said that callers can't

[02:13:09] Speaker 01:
unilaterally set that forth.

[02:13:10] Speaker 01:
They can't condition consent in these ways.

[02:13:13] Speaker 01:
I think we just found that that would excessively burden consumer protection interests.

[02:13:18] Speaker 01:
But maybe there's another way of looking at it.

[02:13:19] Speaker 07:
Because you're worried they might say, yeah, great.

[02:13:22] Speaker 07:
I'll say, sure, whatever you say.

[02:13:23] Speaker 07:
And then it'll be like you have to mail something on the third Tuesday of the month.

[02:13:27] Speaker 07:
And you have to do it from these zip codes.

[02:13:31] Speaker 07:
And you have to send it to a different address from the one that

[02:13:33] Speaker 07:
appears on our website.

[02:13:35] Speaker 07:
And that's what you're concerned about?

[02:13:36] Speaker 01:
Yes, we're concerned about that.

[02:13:37] Speaker 01:
And I think we would also be concerned in the hypothetical that Your Honor gave that consumers, especially doing this over the phone, I think was your hypo, but even to an employee in the store who tells you, by the way, if you're going to revoke consent, you've got to do it this way.

[02:13:50] Speaker 01:
And the consumers are not really paying much attention.

[02:13:53] Speaker 01:
They've done this.

[02:13:54] Speaker 01:
Later on, they want to revoke consent.

[02:13:55] Speaker 01:
And they don't know how.

[02:13:56] Speaker 01:
And they might not even be able to find out how.

[02:13:58] Speaker 01:
Maybe they were told this once.

[02:13:59] Speaker 01:
And never again.

[02:14:00] Speaker 01:
You're not even talking about a contract where it's written somewhere.

[02:14:03] Speaker 01:
But our overarching view is that a caller who has received a consumer's repeated request to stop calling can't choose to ignore that request rather than accept it simply because the consumer doesn't know what magic words or what particular means of revocation to use.

[02:14:21] Speaker 01:
And I can't think of any legitimate reason that most callers would have if they received consent reasonably.

[02:14:26] Speaker 01:
They have it in hand to ignore it rather than to accept it.

[02:14:33] Speaker 01:
Now, if Your Honors would like, I can briefly touch on these health care issues.

[02:14:37] Speaker 01:
But if there are any further questions on the earlier issues, I'm happy to address them.

[02:14:40] Speaker 01:
And I just had one question about the health care stuff.

[02:14:42] Speaker 07:
And the FCC does sort of earlier equate HIPAA covered with, you know,

[02:14:51] Speaker 07:
a narrower category of healthcare calls.

[02:14:55] Speaker 07:
I'm sorry, they create HIPAA calls with, yeah, they act like HIPAA calls are all gonna be calls that are given lenient treatment under the TCPA, but here is actually there are product promotion kind of calls that HIPAA permits, but that are gonna be more controlled by the TCPA.

[02:15:16] Speaker 07:
What struck me is that they're treating the HIPAA calls differently when they're made to landlines as opposed to cell phones, and I wonder if that differential is explained anywhere.

[02:15:25] Speaker 01:
I have a few different answers to that.

[02:15:26] Speaker 01:
I think, number one, that's certainly the premise or right-hand's argument, but I don't think the premise is correct.

[02:15:32] Speaker 01:
And I would, we don't understand the scope of the 2012 exemption to be broader than the one that we enacted here.

[02:15:38] Speaker 01:
And I direct the court, I have the citation that counsel didn't have earlier, it's the paragraph 63 of the 2012 order.

[02:15:44] Speaker 01:
And that paragraph explains that the exemption was intended to cover only calls, quote, intended to communicate healthcare information.

[02:15:52] Speaker 01:
And didn't cover calls seeking payment for property, goods, or services.

[02:15:55] Speaker 01:
So our understanding of that 2012 order is that it didn't cover non-treatment calls either.

[02:16:01] Speaker 01:
We're not experts in HIPAA at the FCC.

[02:16:05] Speaker 01:
And so we may have been more clear in this order with the benefit of more experience to spell out more clearly, here is what is not covered.

[02:16:14] Speaker 01:
I think that's perfectly fine.

[02:16:15] Speaker 01:
There's nothing arbitrary or capricious about treating calls.

[02:16:18] Speaker 01:
healthcare calls to wireless numbers more restrictively than calls to landline numbers.

[02:16:23] Speaker 01:
Because after all, this statute itself, in many places, places greater restrictions on calls to wireless numbers than on calls to landline numbers.

[02:16:32] Speaker 01:
So there's simply no conflict to be had here.

[02:16:36] Speaker 01:
And I want to stress before maybe leaving the topic of the health care exemption, that the FCC has exempted all health care treatment calls.

[02:16:46] Speaker 01:
So the only thing that Rite Aid is here arguing over is non-treatment calls.

[02:16:51] Speaker 01:
And these are calls, as the order explains, for things like advertising, telemarketing, billing, and debt collection.

[02:16:57] Speaker 01:
And I averted to in an earlier part of the argument, the underlying policy question here for the agency is what calls are so important that they warrant setting aside consumer privacy interests, so important that callers shouldn't even need to ask for consent.

[02:17:11] Speaker 01:
And it was reasonable here for the agency to conclude that healthcare treatment calls, that unlike for healthcare treatment calls, for these other categories of calls, there isn't the same critical interest in timely delivery.

[02:17:24] Speaker 07:
I think my question was whether there was some place in the order that you would point me to to explain the difference between the landline calls and the cell phones.

[02:17:33] Speaker 01:
I don't think this was raised with the commission in a square way.

[02:17:36] Speaker 01:
We pointed out there are a number of waiver issues with Rite Aid's arguments, and in particular the ones that they press in their reply brief.

[02:17:42] Speaker 01:
So I would encourage the court to look at the citations in Rite Aid's reply brief, where they claim to have raised all of their arguments.

[02:17:49] Speaker 01:
Because I think if you go back and look at those pleadings, you'll see the arguments aren't there.

[02:17:53] Speaker 01:
So if something wasn't squarely teed up to the commission, then that might be why it doesn't appear in the order.

[02:17:59] Speaker 01:
But again, our understanding was that the 2012 order was no broader than this order.

[02:18:05] Speaker 01:
But regardless, it certainly, even if it were, we're talking about the order here.

[02:18:10] Speaker 01:
And it would be entirely permissible to take a narrower approach.

[02:18:14] Speaker 07:
Before you sit down, if we were to defer to the commission on its understanding of the autodialer definition

[02:18:23] Speaker 07:
Where would you look?

[02:18:24] Speaker 07:
What is the person of the language that the FCC has done?

[02:18:28] Speaker 07:
And I don't really see it in the 2003 order, or is it 2008 order, but in this order?

[02:18:35] Speaker 01:
Where should we look?

[02:18:37] Speaker 01:
So let me say first, to the extent that the petitioners claim that they don't think that the 2003 or 2008 orders, which are the orders that address this, if they don't think that it was sufficiently explained there, that's a procedural challenge under the APA that had to be brought on direct review of those orders.

[02:18:53] Speaker 01:
But that's water under the bridge at this point.

[02:18:55] Speaker 01:
But I'll offer you a synthesis of what I think is stated in those orders.

[02:18:59] Speaker 01:
I would say that an autodialer is any device that can store produced numbers

[02:19:04] Speaker 01:
whether random, sequential, or from a fixed list or database, and to dial those numbers automatically without human intervention.

[02:19:12] Speaker 01:
And that incorporates all of the elements that you'll see mentioned in those orders.

[02:19:15] Speaker 01:
And what we said is that the underlying concern of the TCPA is with technology that, unlike human callers, can dial thousands of numbers in a short period of time and thereby lends itself to pernicious uses.

[02:19:27] Speaker 01:
I would direct the court to paragraph in the 2003 order

[02:19:31] Speaker 01:
This is paragraphs 132 to 133.

[02:19:32] Speaker 01:
In the ACA declaratory ruling from 2008, it's in paragraph 17.

[02:19:38] Speaker 01:
And those are quoted in paragraphs 14 and 17 of this order.

[02:19:41] Speaker 01:
Now, as I think is set forth in our brief, this order describes those past orders.

[02:19:46] Speaker 01:
It doesn't revisit them.

[02:19:48] Speaker 01:
So I don't think the mere fact that we point out, here's what they said, reopens it for this court to review that.

[02:19:53] Speaker 01:
I think it's an untimely challenge to those past orders.

[02:19:56] Speaker 01:
But that's where you can take a look to see what we've said.

[02:19:58] Speaker 01:
And I think it's all entirely consistent.

[02:20:00] Speaker 01:
I don't think there's any inconsistent tests here.

[02:20:04] Speaker 01:
Be happy to answer any further questions from the court.

[02:20:06] Speaker 01:
But if there are no further questions, then we respectfully ask that the court deny the petitions for review.

[02:20:11] Speaker 03:
Thank you.

[02:20:14] Speaker 03:
We'll get to rebuttal now.

[02:20:17] Speaker 03:
Mr. Foretsky will give you three minutes.

[02:20:21] Speaker 02:
Let me pick up where Mr. Novak left off on the jurisdictional point.

[02:20:27] Speaker 02:
This court has said repeatedly in the Bigger Staff case more recently just last year in the New York Republican State Commission versus SEC case at 799 F3rd, 1126.

[02:20:37] Speaker 02:
There are a couple of ways that prior agency actions can be challenged even after the statutory period.

[02:20:43] Speaker 02:
If the earlier action was unclear, you can ask for clarification.

[02:20:47] Speaker 02:
That was done here.

[02:20:48] Speaker 02:
The best example is the glide petition.

[02:20:51] Speaker 02:
It's at Joint Appendix 251 and 255.

[02:20:54] Speaker 02:
You can see there are requests for clarification about what the predictive dialer rulings meant and what random sequential number generation means.

[02:21:00] Speaker 02:
Alternatively, you can file – you can ask for a rulemaking.

[02:21:04] Speaker 02:
That's what ACA did here.

[02:21:06] Speaker 02:
That's a Joint Appendix 415 to 418.

[02:21:10] Speaker 02:
Once those requests are denied, as they were here, that's subject to judicial review.

[02:21:16] Speaker 02:
With respect to the ATDS definition, first on capacity, it hardly helps us that the commission won't tell us if smartphones are covered.

[02:21:29] Speaker 05:
That's right.

[02:21:32] Speaker 02:
Yes, the capacity is unquestionably before us.

[02:21:36] Speaker 02:
Mr. Novak said petitioners won't take yes for an answer on smartphones.

[02:21:40] Speaker 02:
Well, they're not telling us whether smartphones are covered and that hardly helps us.

[02:21:44] Speaker 02:
The point is not that the commission has to address every type of technology that's not before it.

[02:21:49] Speaker 02:
The point is, though, that when the commission sets forth a test, it has to have some content to it that gives us some guidance that we can then apply in the real world and make judgments about what equipment might or might not be covered.

[02:22:05] Speaker 07:
concerns about smartphones and you want a guidance particular to them because you're planning some new strategy that uses them, you need to ask the question in some concrete way, which does seem – I mean, these are hard questions.

[02:22:17] Speaker 07:
You don't want to answer broadly and in the abstract.

[02:22:19] Speaker 07:
And the broad abstract answer they've given you is store produced numbers, dial them automatically without human intervention.

[02:22:25] Speaker 07:
And I guess their question to you is what's not clear about that?

[02:22:29] Speaker 02:
So first of all, store or produce numbers.

[02:22:33] Speaker 02:
First of all, what's not clear about it is that for capacity, they have given us a test that says modifications count, but only if they're not too theoretical or too attenuated.

[02:22:43] Speaker 02:
We have no idea what that means.

[02:22:44] Speaker 02:
That is just like in the USPS case where the court set aside postal service regulations.

[02:22:49] Speaker 02:
basic characteristic of a mailing.

[02:22:52] Speaker 02:
We don't know what that means.

[02:22:53] Speaker 02:
In the Tripoli case, a much faster rate.

[02:22:56] Speaker 02:
We don't know what that means.

[02:22:58] Speaker 02:
The only example that the Commission can give us of something that is clearly not covered is a rotary phone.

[02:23:03] Speaker 02:
With respect to software-controlled equipment, which is what's actually used in the real world, and there was evidence of this type of equipment before the Commission,

[02:23:10] Speaker 02:
All that the Commission will tell us is that predictive dialers count as ATDSs because they're software-controlled.

[02:23:17] Speaker 02:
Smartphones, which are just as software-controlled, might or might not.

[02:23:21] Speaker 02:
And so this order, first of all, misinterprets capacity because logically understood – or understood on its terms, it makes every computerized calling device an ATDS, which can't be what Congress meant.

[02:23:33] Speaker 02:
But at a minimum, it's impermissibly vague as both an APA matter and a constitutional matter, because the test that the Commission has put forward is just empty.

[02:23:43] Speaker 07:
With respect to random sequential number... Can you not say, look, this is the technology that we're planning to use.

[02:23:51] Speaker 07:
Can we do it?

[02:23:52] Speaker 02:
There is, there in fact was some technology put forward before the Commission in exactly that way.

[02:23:58] Speaker 02:
Preview dialers, which is a different technology than predictive dialers, were described to the Commission.

[02:24:04] Speaker 02:
What the Commission gave us, however, was the general order that it's given us.

[02:24:09] Speaker 02:
with platitudes about too theoretical and too attenuated, but no concrete guidance, even on the specific equipment that was put before the commission.

[02:24:17] Speaker 03:
And that was put before the commission with respect to this order.

[02:24:19] Speaker 03:
You're not talking about back in the day.

[02:24:21] Speaker 03:
Correct.

[02:24:23] Speaker 02:
With respect to random and sequential number generation, even today, the commission can't settle on an interpretation of what using a random or sequential number generator means and what it modifies.

[02:24:34] Speaker 02:
And so, first of all, from a deference perspective, there's nothing here to defer to when the Commission has not given the Court a statutory interpretation to weigh in on.

[02:24:45] Speaker 02:
And second of all, their inability to settle on an interpretation of this just underscores that they haven't offered any plausible interpretation that they can even commit to, and that our interpretation is the only reasonable one of this statute.

[02:24:59] Speaker 02:
With respect to the two interpretations that were offered here today, modify can't, I'm sorry, using a random sequential number generator, can't modify only produce for reasons we talked about earlier.

[02:25:10] Speaker 02:
The Third Circuit in the Dominguez case, while it noted that it is somewhat awkward to treat that language as modifying store, the Third Circuit ultimately held that that was the only way to read the statute because that's the only plausible alternative and there are no other plausible ones.

[02:25:26] Speaker 02:
The other thing about reading random and sequential number generation as a method of calling,

[02:25:32] Speaker 02:
The only way that numbers can be dialed is either randomly or sequentially.

[02:25:36] Speaker 02:
There's no other way to call.

[02:25:38] Speaker 02:
And so the combination of that reading of the ATDS functions and the limitless reading of capacity makes everything.

[02:25:46] Speaker 07:
I don't think I ever dial a number randomly or sequentially.

[02:25:49] Speaker 07:
I mean, I dial individually chosen numbers for individually chosen purposes.

[02:25:53] Speaker 07:
So I think this is about lists.

[02:25:55] Speaker 07:
And you're right that dialing off of a list, you dial randomly or sequentially, no?

[02:25:59] Speaker 02:
Certainly, dialing off of a list, the only way that you can dial is randomly or sequentially.

[02:26:05] Speaker 02:
If a computer is involved in the calling, the only way is that it can be randomly sequentially.

[02:26:09] Speaker 02:
Even when you dial, as Judge Srinivasan suggested earlier, there's some sequence there.

[02:26:14] Speaker 02:
It may not be an algorithmic and as transparent a sequence as a computer.

[02:26:19] Speaker 02:
But Congress in this statute did not set out to prohibit all computer-assisted dialing.

[02:26:25] Speaker 02:
To the contrary, it was, as we discussed earlier, targeting a particular problem and protecting the sorts of communications that are at issue here.

[02:26:38] Speaker 02:
With respect to ratification, first of all, on the 2015 amendment, debt collectors absolutely use pre-recorded and automated voice calls, and so therefore it's not at all surprising that Congress amended the statute in order to permit that with respect to government debt, even without consent.

[02:26:55] Speaker 02:
This is an amendment that happened to be passed after these issues were brought to the forefront following the commission's order, but it's an amendment that had been discussed and sought long before.

[02:27:06] Speaker 02:
This isn't something that just came up for the first time in response to the commission's order.

[02:27:09] Speaker 03:
But it didn't amend the part of the statute that is separate from the pre-recorded calls, right?

[02:27:15] Speaker 03:
So there's two, I thought there were two debt collection provisions.

[02:27:17] Speaker 03:
There's one in B1A3, and then there's one in B.

[02:27:29] Speaker 02:
And so the provision that they amended, if you look at the amended version, this is in the petitioner's opening brief at Addendum 5.

[02:27:37] Speaker 02:
That's where you'll find the statute.

[02:27:42] Speaker 02:
It allows calls for government debt collection purposes using any automatic telephone dialing system or an artificial or pre-recorded voice.

[02:27:56] Speaker 02:
And then at the bottom of that page, you can see B1B, where you have the amendment showing that there's an exception if the call is made to collect government debt.

[02:28:08] Speaker 03:
I guess I'm looking a little bit up at B1A3.

[02:28:13] Speaker 03:
The last part of that says, unless such call is made solely to collect the debt owed to or guaranteed by the United States.

[02:28:22] Speaker 02:
Right, but that also leads you back to the same

[02:28:26] Speaker 02:
That's leading back to B1A, where we're talking about both ATDSs and artificial or prerecorded voice calls.

[02:28:33] Speaker 03:
Ah, got it.

[02:28:34] Speaker 03:
Got it.

[02:28:35] Speaker 02:
Thanks.

[02:28:37] Speaker 02:
With respect to reassignment, first of all, callers don't bear the burden of strict liability for speech.

[02:28:44] Speaker 02:
That raises, at a minimum, serious First Amendment problems.

[02:28:47] Speaker 02:
It's also inconsistent with the scheme that Congress enacted.

[02:28:50] Speaker 02:
In terms of the practicalities that Mr. Novak raised, first of all,

[02:28:54] Speaker 02:
Many people don't sue, but many do, and there are examples of that in the record.

[02:28:59] Speaker 02:
The Rubio's Restaurant example is a particularly stark one.

[02:29:04] Speaker 02:
Classes have been certified in reassigned number cases, and the stakes here are enormous – $500 to $1,500 per call.

[02:29:12] Speaker 02:
And so, absolutely, callers are deterred from speaking as a result of the reassigned number regime that the Commission has adopted.

[02:29:20] Speaker 02:
And this is going outside the record, but I can tell you that in preparing for this argument, I spoke to petitioners and their members, and almost all of the banks that are members of Petitioner Community Bankers Association have stopped texting.

[02:29:35] Speaker 02:
as a result of this, because the reassigned number liability chills protected speech.

[02:29:42] Speaker 02:
With respect to New Star and its alternatives, first of all, none of that's in the record.

[02:29:46] Speaker 02:
Second of all, the Commission can't come up with what is ultimately a regime contrary to the statute and contrary to the Constitution and leave it to callers to figure out solutions.

[02:29:56] Speaker 02:
And while I'm not familiar with the particular systems that Mr. Novak mentioned, what I can tell you is that this is not an easy problem to solve.

[02:30:03] Speaker 02:
All of these systems like NuSTAR are trying to predict reassignments.

[02:30:07] Speaker 02:
The carriers that actually have this information are not generally sharing that for all sorts of reasons.

[02:30:14] Speaker 02:
And so this is not an easy problem to solve technologically.

[02:30:18] Speaker 02:
Lastly, with respect to revocation, Judge Pillard asked Mr. Novak where in the order and in the record the Commission explained the different treatment of banking and health care calls – banking and health care texts versus all others for revocation purposes.

[02:30:34] Speaker 02:
And the answer is there is no explanation.

[02:30:37] Speaker 02:
And whatever the post hoc explanation may be now, the court as a matter of administrative law can't defer to that.

[02:30:45] Speaker 02:
The commission acted arbitrarily by not explaining its differential treatment in its order.

[02:30:54] Speaker 02:
Lastly, with respect to the contractual provisions.

[02:30:57] Speaker 07:
Well, I think his position was things that aren't covered are going to be treated differently from things that are, and that's just on the face of the statute.

[02:31:04] Speaker 07:
I thought that was his answer.

[02:31:06] Speaker 02:
Except there's nothing in that answer or in the order that reaches the question that I think Your Honor was asking, which is,

[02:31:16] Speaker 02:
Why are these standardized methods appropriate to implement for these communications and not for others?

[02:31:23] Speaker 07:
By the same token that they're not covered, it's because there's less concern about them being unwanted, therefore thumb on the scale in favor of continuing them where revocation might be ambiguous, whereas thumb on the scale against continuing them in the situation that is covered by the act, which is presumptively, in their view, the nuisance calls.

[02:31:44] Speaker 02:
And I think to the extent the Commission wanted to make that argument, it raises questions about content discrimination, but to the extent the Commission wanted to make that argument, that would be an argument to make with respect to revocation in the order, not something to read between the lines after the fact.

[02:32:02] Speaker 02:
On the face of the order, there's no explanation for why standardized revocation procedures are appropriate, and indeed they are, for certain types of texts, but not for others.

[02:32:13] Speaker 02:
Finally, with respect to the contractual provisions, the footnote in the Commission's brief says that the ruling didn't address whether contracting parties can select a particular revocation method by mutual agreement.

[02:32:26] Speaker 02:
There's nothing in that statement or in that concession

[02:32:29] Speaker 02:
that depends on the degree to which the agreement is individually negotiated, and the Court should take the concession at face value as a premise of the Court's opinion in this area.

[02:32:42] Speaker 03:
Thank you.

[02:32:43] Speaker 03:
Thank you.

[02:32:45] Speaker 03:
Mr. Werner, we'll give you no time, but we'll give you back one minute.

[02:32:49] Speaker 03:
Yeah.

[02:32:51] Speaker 03:
Of course.

[02:32:52] Speaker 04:
Appreciate the indulgence, Your Honor.

[02:32:54] Speaker 04:
I'd like to pick up, actually, with a point that you made about the social cost of the FCC's trade-offs.

[02:33:00] Speaker 04:
And when it comes to HIPAA-protected communications, the social cost is particularly high.

[02:33:06] Speaker 04:
And when it comes to the trade-off of the commission made here, the trade-off is particularly irrational.

[02:33:11] Speaker 04:
The FCC said at 1.46 of its 2015 order that timely delivery of only certain HIPAA communications to wireless phones are critical to health care.

[02:33:20] Speaker 04:
That fundamentally is different, fundamentally, from what it said in 2012.

[02:33:24] Speaker 04:
And it offered, getting to your question, Judge Pollard, about what's the difference between wireless calls and residential calls as for the basis of the different exemptions.

[02:33:34] Speaker 04:
It offered absolutely no explanation as to why timeliness matters for wireless calls.

[02:33:39] Speaker 04:
but not for residential calls, and why healthcare treatment purpose matters for wireless calls, but not residential calls.

[02:33:46] Speaker 04:
And again, getting to another point that you had raised, there is clearly a difference between what the FCC did in 2012 and what it's done in 2015.

[02:33:53] Speaker 04:
I draw your attention to the actual regulations.

[02:33:56] Speaker 04:
that the FCC installed in 2012.

[02:33:59] Speaker 04:
If you look at 1200A2 and A3, they talk about calls subject to HIPAA.

[02:34:03] Speaker 04:
And the 2012 order at paragraph 60 speaks about all calls subject to HIPAA.

[02:34:09] Speaker 04:
They clearly did something different in 2015.

[02:34:12] Speaker 04:
And it's ill-defined, and it's vague, and they don't even actually identify the scope of the exemption and what falls within it and what falls outside of it.

[02:34:20] Speaker 04:
But to get to the practical point that you had raised earlier, what falls on what side of the line?

[02:34:24] Speaker 04:
First of all,

[02:34:25] Speaker 04:
The commission has no expertise to make that call.

[02:34:29] Speaker 04:
It doesn't administer HIPAA, HHS does.

[02:34:32] Speaker 04:
It's the Federal Communications Commission.

[02:34:35] Speaker 07:
I'm not sure that that makes your point because what they're saying they have expertise on is the difference between a marketing call and a

[02:34:44] Speaker 07:
call that relates to something other than marketing.

[02:34:47] Speaker 07:
And they're making the same line with respect to your marketing as others.

[02:34:51] Speaker 04:
Well, I think fundamentally, we're not talking about marketing calls.

[02:34:53] Speaker 04:
When the FCC acted in 2012, we're talking about health care calls subject.

[02:34:57] Speaker 07:
No, but then later in the current order, that is what they're talking about.

[02:35:00] Speaker 07:
That's what they're now putting you with everybody else.

[02:35:02] Speaker 04:
Well, what I was going to say is when it gets to the practical implications, if you look at what's permitted under the 2012 order, things like flu shot reminders, refill prescription reminders, immunizations,

[02:35:14] Speaker 04:
Those are the types of things that are clearly permitted under the regulations.

[02:35:18] Speaker 04:
When it acted in 2015 on wireless calls, those very same communications, it is not clear at all, and they seem to fall outside of what would be permitted.

[02:35:28] Speaker 04:
But again, the actual scope of the exemption is vague and clear.

[02:35:31] Speaker 04:
We're not talking about marketing calls.

[02:35:34] Speaker 04:
We're talking about

[02:35:35] Speaker 04:
healthcare calls that are protected by HIPAA.

[02:35:37] Speaker 04:
We're not talking about calls that Ryan might make about, you know, sale on Coca-Cola or something like that.

[02:35:42] Speaker 04:
We're talking about healthcare communications that are already regulated under HIPAA, the privacy rule, and subject to an entirely separate enforcement regime.

[02:35:52] Speaker 04:
And HHS has been an active enforcer of its own rules.

[02:35:57] Speaker 04:
about the waiver argument that the FCC had raised, and I'd just direct your attention to Rite Aid's comments and Aham's petitions, which specifically ask for equal treatment between wireless and residential.

[02:36:09] Speaker 03:
Thank you.

[02:36:10] Speaker 03:
Thank you, Council.

[02:36:11] Speaker 03:
Thank you to all Council.

[02:36:12] Speaker 03:
The case is submitted.

[02:36:13] Speaker 03:
We'll now move from a telephone case to a mail case, and we'll let the telephone people leave.