On Exceptions To Second Report Of Special Master

No. 142, Orig.  Argued February 22, 2021—Decided April 1, 2021

This case involves a dispute between Florida and Georgia concerning the proper apportionment of interstate waters. Florida brought an original action against Georgia alleging that its upstream neighbor consumes more than its fair share of water from interstate rivers in the Apalachicola-Chattahoochee-Flint River Basin. Florida claims that Georgia’s overconsumption of Basin waters caused low flows in the Apalachicola River which seriously harmed Florida’s oyster fisheries and river ecosystem. The first Special Master appointed by the Court to assess Florida’s claims recommended dismissal of Florida’s complaint. The Court disagreed with the Special Master’s analysis of the threshold question of redressability, and remanded for the Special Master to make definitive findings and recommendations on several issues, including: whether Florida had proved any serious injury caused by Georgia; the extent to which reducing Georgia’s water consumption would increase Apalachicola River flows; and the extent to which any increased Apalachicola flows would redress Florida’s injuries. Florida v. Georgia, 585 U. S. ___. Following supplemental briefing and oral argument, the Special Master then reviewing the case produced an 81-page report recommending that the Court deny Florida relief. Relevant here, the Special Master concluded that Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm either to Florida’s oyster fisheries or to its river wildlife and plant life. Florida filed exceptions.

Held: Florida’s exceptions to the Special Master’s Report are overruled, and the case is dismissed. Pp. 4–10.

  (a) The Court has original jurisdiction to equitably apportion interstate waters between States. Given the competing sovereign interests in such cases, a complaining State bears a burden much greater than does a private party seeking an injunction. Florida concedes that it cannot obtain an equitable apportionment here unless it first proves by clear and convincing evidence a serious injury caused by Georgia. The Court conducts an independent review of the record in ruling on Florida’s exceptions to the Special Master’s Report. Kansas v. Nebraska, 574 U. S. 445, 453. Pp. 4–5.

  (b) Florida has not proved by clear and convincing evidence that the collapse of its oyster fisheries was caused by Georgia’s overconsumption. The oyster population in the Bay collapsed in 2012 in the midst of a severe drought. Florida attempts to show that Georgia’s alleged unreasonable agricultural water consumption caused reduced river flows, which in turn increased the Bay’s salinity, which in turn attracted saltwater oyster predators and disease, decimating the oyster population. Georgia offers contrary evidence that Florida’s mismanagement of its fisheries, rather than reduced river flows, caused the decline. Florida’s own documents and witnesses reveal that Florida allowed unprecedented levels of oyster harvesting in the years leading to the collapse. And the record points to other potentially relevant factors, including actions of the U. S. Army Corps of Engineers, multiyear droughts, and changing rainfall patterns. The precise causes of the Bay’s oyster collapse remain a subject of scientific debate, but the record evidence establishes at most that increased salinity and predation contributed to the collapse of Florida’s fisheries, not that Georgia’s overconsumption caused the increased salinity and predation. Florida fails to establish that Georgia’s overconsumption was a substantial factor contributing to its injury, much less the sole cause. As such the Court need not address the causation standard applicable in equitable-apportionment cases. Pp. 5–9.

  (c) Florida also has not proved by clear and convincing evidence that Georgia’s overconsumption has harmed river wildlife and plant life by disconnecting tributaries, swamps, and sloughs from the Apalachicola River, thereby drying out important habitats for river species. The Special Master found “a complete lack of evidence” that any river species has suffered or will suffer serious injury from Georgia’s alleged overconsumption, Second Report of Special Master 22, and the Court agrees with that conclusion. Pp. 9–10.

Exceptions overruled, and case dismissed.

 Barrett, J., delivered the opinion for a unanimous Court.


Certiorari To The United States Court Of Appeals For The Third Circuit

No. 19–1231. Argued January 19, 2021—Decided April 1, 2021 1

Under its broad authority to regulate broadcast media in the public interest, the Federal Communications Commission (FCC) has long maintained several ownership rules that limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. Section 202(h) of the Telecommunications Act of 1996 directs the FCC to review its media ownership rules every four years and to repeal or modify any rules that no longer serve the public interest.

  In 2017, the FCC concluded that three of its ownership rules were no longer necessary to promote competition, localism, or viewpoint diversity. The Commission further concluded that the record evidence did not suggest that repealing or modifying those three rules was likely to harm minority and female ownership. Based on that analysis, the agency decided to repeal two of those three ownership rules and modify the third. Prometheus Radio Project and several other public interest and consumer advocacy groups (collectively, Prometheus) petitioned for review, arguing that the FCC’s decision to repeal or modify the three rules was arbitrary and capricious under the Administrative Procedure Act (APA). The Third Circuit vacated the FCC’s reconsideration order, holding that the record did not support the agency’s conclusion that the rule changes would have minimal effect on minority and female ownership.

Held: The FCC’s decision to repeal or modify the three ownership rules was not arbitrary and capricious for purposes of the APA. In analyzing whether to repeal or modify its existing ownership rules, the FCC considered the record evidence and reasonably concluded that the three ownership rules at issue were no longer necessary to serve the agency’s public interest goals of competition, localism, and viewpoint diversity, and that the rule changes were not likely to harm minority and female ownership.

 In challenging the FCC’s order, Prometheus argues that the Commission’s assessment of the likely impact of the rule changes on minority and female ownership rested on flawed data. But the FCC acknowledged the gaps in the data sets it relied on, and noted that, despite its repeated requests for additional data, it had received no countervailing evidence suggesting that changing the three ownership rules was likely to harm minority and female ownership. Prometheus also asserts that the FCC ignored two studies submitted by a commenter that purported to show that past relaxations of the ownership rules had led to decreases in minority and female ownership levels. But the record demonstrates that the FCC considered those studies and simply interpreted them differently.

  In assessing the effects of the rule changes on minority and female ownership, the FCC did not have perfect empirical or statistical data. But that is not unusual in day-to-day agency decisionmaking within the Executive Branch. The APA imposes no general obligation on agencies to conduct or commission their own empirical or statistical studies. And nothing in the Telecommunications Act requires the FCC to conduct such studies before exercising its discretion under Section 202(h). In light of the sparse record on minority and female ownership and the FCC’s findings with respect to competition, localism, and viewpoint diversity, the Court cannot say that the agency’s decision to repeal or modify the ownership rules fell outside the zone of reasonableness for purposes of the APA. Pp. 7–13.

939 F. 3d 567, reversed.

 Kavanaugh, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

1 Together with No. 19–1241, National Association of Broadcasters et al. v. Prometheus Radio Project et al., also on certiorari to the same court.

Facebook, Inc. v. Duguid et al.

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19–511. Argued December 8, 2020—Decided April 1, 2021

The Telephone Consumer Protection Act of 1991 (TCPA) proscribes abusive telemarketing practices by, among other things, restricting certain communications made with an “automatic telephone dialing system.” The TCPA defines such “autodialers” as equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers. 47 U. S. C. §227(a)(1). Petitioner Facebook, Inc., maintains a social media platform that, as a security feature, allows users to elect to receive text messages when someone attempts to log in to the user’s account from a new device or browser. Facebook sent such texts to Noah Duguid, alerting him to login activity on a Facebook account linked to his telephone number, but Duguid never created that account (or any account on Facebook). Duguid tried without success to stop the unwanted messages, and eventually brought a putative class action against Facebook. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages. Facebook countered that the TCPA does not apply because the technology it used to text Duguid did not use a “random or sequential number generator.” The Ninth Circuit disagreed, holding that §227(a)(1) applies to a notification system like Facebook’s that has the capacity to dial automatically stored numbers.

Held: To qualify as an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator. Pp. 4–12.

  (a) This case turns on whether the clause “using a random or sequential number generator” in §227(a)(1)(A) modifies both of the two verbs that precede it (“store” and “produce”), as Facebook contends, or only the closest one (“produce”), as maintained by Duguid. The most natural reading of the text and other aspects of §227(a)(1)(A) confirm Facebook’s view. First, in an ordinary case, the “series-qualifier canon” instructs that a modifier at the end of a series of nouns or verbs applies to the entire series. Here, that canon indicates that the modifying phrase “using a random or sequential number generator” qualifies both antecedent verbs, “store” and “produce.” Second, the modifying phrase immediately follows a concise, integrated clause (“store or produce telephone numbers to be called”), which uses the word “or” to connect two verbs that share a common direct object (“telephone numbers to be called”). Given this structure, it would be odd to apply the modifier to just one part of the cohesive clause. Third, the comma in §227(a)(1)(A) separating the modifying phrase from the antecedents suggests that the qualifier applies to all of the antecedents, instead of just the nearest one. Pp. 4–6.

  Duguid’s insistence that a limiting clause should ordinarily be read as modifying only the phrase that it immediately follows (the so-called “rule of the last antecedent”) does not help his cause for two reasons. First, the Court has declined to apply that rule in the specific context where, as here, the modifying clause appears after an integrated list. Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 344, n. 4. Second, the last antecedent before the clause at issue in §227(a)(1)(A) is not “produce,” as Duguid argues, but rather “telephone numbers to be called.” Pp. 6–7.

  (b) The statutory context confirms that the TCPA’s autodialer definition excludes equipment that does not use a random or sequential number generator. Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity. Facebook’s interpretation of §227(a)(1)(A) better matches the scope of the TCPA to these specific concerns. Duguid’s interpretation, on the other hand, would encompass any equipment that stores and dials telephone numbers. Pp. 7–8.

  (c) Duguid’s other counterarguments do not overcome the clear commands of the statute’s text and broader context. First, he claims that his interpretation best accords with the “sense” of the text. It would make little sense however, to classify as autodialers all equipment with the capacity to store and dial telephone numbers, including virtually all modern cell phones. Second, Duguid invokes the “distributive canon,” which provides that a series of antecedents and consequents should be distributed to one another based on how they most naturally relate in context. But that canon is less suited here because there is only one consequent to match to two antecedents, and in any event, the modifying phrase naturally relates to both antecedents. Third, Duguid broadly construes the TCPA’s privacy-protection goals. But despite Congress’ general concern about intrusive telemarketing practices, Congress ultimately chose a precise autodialer definition. Finally, Duguid argues that a random or sequential number generator is a “senescent technology,” i.e., one likely to become outdated quickly. That may or may not be the case, but either way, this Court cannot rewrite the TCPA to update it for modern technology. Congress’ chosen definition of an autodialer requires that the equipment in question must use a random or sequential number generator. That definition excludes equipment like Facebook’s login notification system, which does not use such technology. Pp. 8–11.

926 F. 3d 1146, reversed and remanded.

 Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Alito, J., filed an opinion concurring in the judgment.