Facebook Seeks to Dodge Abusive Texting Claims
In the United States Supreme Court
|Argument||December 8, 2020|
|Opinion Below||Ninth Circuit Court of Appeals|
|Respondent Brief||Noah Duguid|
Facebook knows a lot about us. It’s fair to say that Facebook could use our personal information to make abusive auto-calls and texts if it so desired. . . and if the law did not prevent it from doing so. This case is about whether Facebook’s auto-texting system is regulated under the Telephone Consumer Protection Act, a law designed to prevent abusive auto-calls and texts.
Noah Duguid is not a Facebook user. Never signed up for Facebook. Never entered his contact information to Facebook. Nevertheless, somehow Facebook got Duguid’s number into its auto-text system and kept sending him text messages that his (nonexistent) account was accessed from an unauthorized device.
Duguid tried to get the messages to stop by responding to the text and by sending emails. He got auto-responses. First, Facebook’s system told him that the messaging was turned off, but it wasn’t. He also received auto-responses telling him to log-on to his account to deal with it. Obviously, Duguid had no account, so he was further frustrated. The messages kept coming.
Finally Duguid filed a lawsuit against Facebook, claiming a violation of the Telephone Consumer Protection Act.
The Telephone Consumer Protection Act
Congress passed the Telephone Consumer Protection Act (TCPA) in 1991 to protect Americans against unwanted telemarketing calls. At the time, robocalls were driving people crazy. Marketers used machines that auto-generated numbers or called blocks of sequential numbers to harass people. The problem was serious with sequential blocks because a marketer could hijack all of the lines of an emergency service or a business.
The TCPA dealt with the problem by banning two types of unwanted calls: 1) robocalls made with an “automatic telephone dialing system” (ATDS) and 2) robocalls made with an artificial or prerecorded voice.
The law does not cover calls to which the consumer “consents,” and the Act defines consent broadly: we consent if we give our number in a business transaction. In __ the ___ expanded the Act’s coverage to include robo-texts in addition to calls.
What Is An “Automatic Telephone Dialing System”?
The TCPA defines an “automatic telephone dialing system” as a device with the “capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
The question in this case: does the part requiring a “random or sequential number generator” apply to both a device that stores and a device that produces numbers to be called? Or does it apply only to the device that produces numbers to be called.
Does it really make sense that a device would store numbers using a random number generator? Generating is producing. So although the grammatical construction of the phrase makes it seem to apply to both storing and producing, the logic doesn’t work that way.
Facebook wants the number generator requirement to apply to storing. Because otherwise, a device that merely stores phone numbers and can dial them is covered by the TCPA. Facebook points out that your cell phone would qualify if that’s the interpretation. And, according to Facebook, that definition would be overbroad, making a person liable under the Act for sending a chain text message to a group of friends. That interpretation would cause a mass of unintended litigation, which Congress did not intend when it passed the TCPA in 1991.
Duguid argues that the number generator phrasing cannot apply to a device that stores information because you can’t store numbers using a random or sequential number generator. The Act thus covers devices that store numbers to be called; and produces numbers to be called, using a random or sequential number generator.
Duguid argues that Facebook’s narrow interpretation of ATDS would lead to a reemergence of unwanted and harassing robocalls and texts – precisely the type that Congress enacted the TCPA to stop. Today, Duguid explains, marketers are not relying on random number generating to harass people. They are using stored lists of numbers. In fact, number generating robo-calling machines are becoming obsolete. Requiring number generators to be employed by the calling device is not supported by the phrasing of the definition; and it does not make sense in light of the point of the TCPA.
The Supreme Court will hear arguments on December 8, 2020.