i'm going to start with of course at any point in time get questions let me know but i want to start with what appears to be a split in this report and circuit court that is essentially found based on an interpretation of a very specific portion of the statute that defines what an auto dialer is the specific portion of the statute that says an auto dialer has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and then to dial those numbers now that this record in this case like other courts have done has decided that the only systems that qualify as auto dialers  systems that make up phone numbers that generate random numbers and then dial them and some courts have specifically and explained this logic you can though by doing so if that's just the way in which reader would would read it what made a difference to me yesterday was when i came across some comments that noble submitted to the f c c where they said back in the ninety's there were two different ways that auto dialers work some of them just generated numbers and instantly called them that would just be producing but others of them they generated a number they call the st number then they generated another number in the same phone others of them just used to do stink when i learned about that technology it didn't seem so ridiculous to mention storing and producing if there were two different ways these are the dollars work at the time i don't know if you understand this or if you looked at that that that technology or that discussion but it came up in judge barrett's opinion for the th circuit what's your response to that that there were two kinds of all the dollars and some of them used storing some of them didn't it still surplusage but it's not ridiculous  well yes but it is also true that we have precedent that says you know sometimes when you say or you mean and of or and sometimes you mean it exclusively so some of them are storing and producing some of them are just or are produc it's not doing it intentionally it's doing it accidentally so i don't i don't think you want a favor doing it then thinking that cuts the other way because the hospital exemption they were dealing with in the ninety's would only have been for these sequential or random number generators not intentionally by familiar honor the point here is that in the ninety's there were systems out there that were making up numbers there were also systems that were calling stored lists so in the ninet congress would have had more of a concern for these random sequential number generators that did exist they no longer exist if they did exist and were calling a bunch of numbers made up all that out of whole cloth in air  does some work in that parent's medical while i agree it does some work i think you have to ask does it make sense that can say you have to say that confess only applies to a portion of the next section because you would need it you wouldn't need to this is only applied to the opponents argument here too many as to whether or not consent is logically needed to call obviously because it's my position that you're going to be if people are calling from  then you're going to need only want to be able to you're only going to do that for people for giving you their consent and what damage is there any pending that helps you beyond supply stitch is your argument really resting on the idea that this w store is not needed in the statute is not doing any work the consensus not doing any work etc is that that's the core of your argument well i have another argument but but the core of the argument here is that that have forty supreme court authority and with when you're reading statutes as you have to give you have to look see is there evidence to give to the let you understand what congressional intent was and so  and so and so that's why it's important to look at what they see actually the d c circuit actually do anything say anything affirmatively saying look we're striking this concept of predictive dialers being auto dialers and they didn't o out aspect to them like they've been generated using a random or sequential number generator so what do you say about that we should be trouble if this is going to sweep in all the smartphones i would i would say to that point specifically that's not what's happening here and if a smartphone if somebody decided to download an app onto their small smartphone and blast out thousands and thousands of text messages and they would be using an auto similar to the dominguez case in as far as what was happening in that case here and the meaning as people were uploading their phone numbers to this machine so they could get notifications of email notifications and and the system in that case which wasn't storing numbers provided to it by yahoo with a call it was only responding to affirmative it was reacting to a request by what it believed to be the end user who said who were previously on that number that's the same as when somebody reaches out to you they've consented to a call back right so an auto response while i'm driving would not be me blasting out an automated message it would be me responding to a phone call  have the present capacity to function as an a t f as an auto dialer i've gone through it multiple times looking for language tech said anything about what happens if if the calls are being made from us but work list there's no discussion of that the system at issue in the meaning is completely different than the system at issue here but the process what was happening the function of that machine was completely different the reason dominguez was looking at whether that system could randomly sequentially generate numbers was because everyone admitted it wasn't calling anybody or texting anybody off a hostile work list automatically so the court in the main it didn't need to consider whether what was happening in this the language from dominguez you know conversation and discussion and sort of created their own well here's what we think they meant and have started to say well this is what i mean it's the floor but it's not from reading this the opinion that's just not surely thank you so much that i like to start i guess by by diving into the ninjas and then i'd like to come around to the statutory interpretation of the points if i could and i would i would say that when you understand the background of how the meaning is came to be i believe the case is directly on point and i think it does it is it is precedent that that this court should should follow and yahoo with making the argument that the system could not generate random or sequential numbers now it is true that the system is different than the system here but as it relates to the language of the statute that we're talking about the only thing that's relevant to the argument is whether it least as similarities between the cases is whether the system can generate random or sequential numbers and then die of them that is the defense that that yahoo made that obviously went up and back to this court a couple times given the issues that they  ca and ultimately when they came back to this court the nd time the issue was in the light of a ca to the system have the actual current capacity to to do a function and that function was material to the court's decision because in order to decide the latent versus current capacity issue the question is capacity to do to do what and that is a question that this court answered to the court said absent from the experts that the plaintiff had was any discussion of how the system actually could or did generate random telephone numbers to dial and the court quote was because it does not shed a light on the key factual question actually at issue d in this case whether the system function does an auto dialer by randomly or sequentially generating telephone numbers and dialing them the expert report lacks relevance and was therefore properly excluded and the conclusion was that the mangas couldn't find any evidence to create  i mean i've asli there's a disagreement i don't believe it is in place and so even if it were even if it were i think the end of the day i think is justice scalia had a quote along these lines a regulator cannot convey the controlling the controlling place to look which i think is what this court did in the manga as when it effectively said ok let's just take a look at the statute i do agree with i would point out that both mark thank you get the court actually did address the idea of whether it could revisit and look at prior guidance because one of the things that the f c c was arguing is that if you circuit lacked the power to review and evaluate what the f c c had ruled in twenty million thirty two thousand and eight because it had never there was never a time to appeal from those orders and the quote was the agency read in that issue with result in prior agency experts on the table it's about current capacity versus latent capacity and that's why the meeting is only focusing on the two thousand and fifteen rule because only the twenty five people who gets to whether it has had the latent capacity of the current capacity and they're not really focusing on current capacity to do what you're right the current capacity was presumed to be the current capacity to you know dial random or sequential numbers but it wasn't really contested in the media so what do we do if there they  this but they really assume that for purposes of argument they didn't it wasn't contested there and they didn't squarely hold well it's i understand the court's question it was contested below of course and that was the thing that led to all this litigation and by the time it got up to the court you know i can appreciate the fact that folks were concerned about this but this this current versus potential capacity but the court can't resolve that issue in my view until it understands what the capacity is the capacity to do what so i don't think there's a way to separate the finding that is the capacity to generate random or sequential numbers from the court's resolution of the whether it's potential or current because you can't have read to me and as as a district courts within the rd circuit to say that you can't escape the random or sequential number generation part of the decision all right could we move on to the statute itself i mean th been helpful but i do want to know so i think the problem with your adversary's position is this weirdness about storing it has to take a direct object best to jump over and take the numbers to be dial without taking the phrase that modifies that the problem for you is that the word store could have been a limited from the statute and it would mean exactly the same thing you're arguing now right that surplusage give us pause why did they put store in there if the pr all the work i think it's because the word store actually does work under the way it was understood at the time the statute was written and as there's a good discussion of this but again both in the th circuit th circuit cases where it at the time that this was created there were there was equipment that could generate random sequence of numbers and then hold them for periods of time then be able to cross check those to other numbers for example and not even dial immediately and then you know there's other equipment that generates the number and instantaneously produces that number into the dialer and then files it you know i don't agree that it's true that the word does does no work i think under the common understanding of that equipment at the time it was created it actually was a real thing now you know i know that the appellant has argued that while that equipment doesn't exist anymore i guess my retort to that is it random or sequential you know number  generators don't exist anymore the statue did what it was intended to do which is effectively you know get rid of them and i think the legislative history of the statute does explain why for example there's a nine  exception and a hospital room exception because there were genuine concerns that random sequential number generation from telemarketers was tying up hospital lines emergency lines if whole neighborhoods were getting hit and it wasn't possible to make outgoing calls it wasn't possible to call the police so i think that's all consistent with the understanding of the work that the random or sequential number generation language is doing and then there's others you know principles of statutory interpretation that come in and we talked about the last and see rule the point's well taken that it's not inviolable you know but it is something it is a factor and it has been recognized by the rd circuit and supreme courts of five minutes  it was under the understanding of the statutes of this created but their reasoning i would argue the women ate significantly more of the statute because the word produce does no work neither does the phrase using a random or sequential number generator all of the insidious words in the english language that has numerous definitions i mean if i make a cake in my kitchen i have produced a cake but i've also produced it to you when i show it to you and so it depends how you want to understand what that mean you know i think one way to understand the distinction is to say that in this context produce means to mediately taken present to take and present something and it have to mean something different than generate because otherwise those words would mean the same thanks i think i think the the way the meaning of that word is it is slightly different and if all that is required for example is to store numbers in a list and then have them sent to tyler one could argue there is really nothing being produced the list with generated the so i see that it's slightly different than generated but i would say it just the more basic level is if you had to compare who's interpretation of this of the statute does more violence to it i think it's  it would mean that the the phrase using a random or sequential number generators is meaningless and all that would be required if that a list could be created and dialed and it would give no content to effectively half of that statutory provision and i think that if you're going surplusage on the one hand versus striking out an entire part of a statute that you would have to err on the side of accepting some surplus it is consistent with with an understanding of the statute at the time it was created it gives effect to most of the statute and it gives effect to the the key provision that we're talking about here i think it is consistent with this know i think i would just i do want to just address briefly that this idea of the consent exception and just to make a couple comments about that it isn't true that one that the consent provision has no and and they have your number and they have consent you consented to have them contact you think junction with service say and then they want to sell you service b but they also want to fill service be to all your neighbors and so they start sending out you know messages using a random or sequential number generator to both you and your neighbors well you don't have a claim because you've consented but your neighbor does and so i don't believe that the consent defense is really  all that applicable for that reason the other point is the one from placer which is obviously it still does work because of the artificial or prerecorded voice limitation and the rd point would be and again this was raised in glass or the statute applies to prevent that has the capacity to generate random or sequential numbers not specifically whether it was used for that particular call so if i have a let's call it a predictive dial er that can generate random or sequential numbers i just didn't use that functionality but the equipment absolutely has that capacity even our district court below recognized that that would fit within the statute and we're very careful to to rule that predictive diet he's not saying predictive dialers can never be and a t v s if the question is can they randomly or sequentially dial mr hurwitz judge gave us one follow up question to the chevron discussion earlier so you've made a cannons is one snuff to kick this to chevron and potentially to the agency if the f c c orders are still on the table right so so on step one i my position that that the surplusage argument that they're relying on is really not so grave that it does any great violence to the statute because the statute does say random or sequential number generation and those words must be given effect so i guess my initial reaction is i'm not moved by the surplusage argument is all that grave even even at step one if you get beyond that of course i have concerns that there is no applicable guidance right now from the f c c as a result of a c and i realize that the other side has a different interpretation and i realize the courts have also wrestled with that that concept but if you get to that point i don't know that there's any valid agency guidance to to get us through at that point which would kind of just take you back to looking at the statute ok thank you thank you  disputing that everybody agreed and the fact that those random sequence will number generators are no longer in use that i think is a good thing but the  of the phone calls the robo call has not changed so if congress intended to get rid of global falls then the statute did not do its job because as we all know you can watch john oliver you can look at  value that data has been borne out simply even in the courts that have agreed with our position on what an auto dialer is have acknowledged the ambiguity so i'm not going to argue there's no ambiguity of course there there is poor practice crafting of the statute however there is no ambiguity with respect to what congress intended and what congress sag and what the agency said over fifteen years and and and i understand that be concerned about the government exemption but when you know getting congress to act to amend the statute is a big deal it's hard to do especially now but in two thousand and fifteen they passed and then they actually passed an amendment to the statute this is during all of the litigation the f c c order was still good and congress didn't go in and say the f t she's got this wrong the ac appeal was up they didn't say whoa if you've been getting this wrong all along and fact they doubled down they said no that is what we meant in fact we're going to give the government an exam ship so not that the government exemption matters in fact you know to say circuit court has said it's unconstitutional i happen to agree with that but if it relevant what what it stands for today is what that congress can't get autodialer was when they drafted it and what do they think it is today and their exemption for the government back that collection shows that they intended all their debt collection