Facebook Seeks to Dodge Abusive Texting Claims
In the United States Supreme Court
|December 8, 2020
|April 1, 2021
|Ninth Circuit Court of Appeals
On April 1, 2021, the Supreme Court ruled for Facebook, that the TCPA covers only devices which have a random or sequential number generator.
Scroll down for our Decision Analysis.
December 4, 2020
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. The Act covers 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.
April 1, 2021
On April 1, 2021, the Supreme Court ruled in favor of Facebook in Facebook v. Duguid. The case addressed a definition in the Telephone Consumer Protection Act (TCPA): what types of devices are covered under the Act?
Noah Duguid, who is not a Facebook user and never signed up for Facebook, kept getting text messages from Facebook’s auto-texting system that his account — his nonexistent account — was accessed from an unauthorized device. Duguid kept trying to get Facebook to stop sending him the messages and kept getting auto-responses. After continued frustration, he brought suit against Facebook under the TCPA.
Background of the Telephone Consumer Protection Act
Congress passed the TCPA in 1991 when robo-calling was a problem.
Advances in automated technology made it feasible for companies to execute large-scale telemarketing campaigns at a fraction of the prior cost, dramatically increasing customer contacts. Infamously, the development of “robocall” technology allowed companies to make calls using artificial or prerecorded voices, obviating the need for live human callers altogether.Facebook v. Duguid Opinion at 2.
Thus, Congress made it unlawful to use any “automatic telephone dialing system” to make certain calls to “emergency telephone line[s], to guest room[s] or patient room[s] of a hospital or to any telephone number assigned to a paging service [or] cellular telephone service” with the “prior express consent of the called party.” The Act applies to text messages in addition to phone calls.
Issue in the Case
In this case, the Supreme Court addressed the definition of “automatic telephone dialing system.” In the TCPA, it’s defined as a piece of equipment that can “store or produce telephone numbers to be called, using a random or sequential number generator.”
Facebook’s auto-texting system stores numbers, but it does not have a “random or sequential number generator.” It does not, thus, produce numbers using a random or sequential number generator. Nor does it store numbers using a random or sequential number generator.
Duguid argued, however, that the definition does not require — for devices that store numbers — the “random or sequential number generator” part. So he wanted to segment the definition to (a) devices that store numbers, and (b) produce numbers using a random or sequential number generator. After all, Duguid argued, it makes no sense for a device to use a number generator to store numbers. That must apply only to the production part of the definition.
Facebook argued that the random or sequential number generator part of the definition applies to both storing and producing numbers. In short, having the capacity to create numbers randomly is essential to the device being covered by the Act. Reading the definition grammatically makes that clear, as does accounting for the history of the Act.
Supreme Court Decision
The Supreme Court, in an opinion by Justice Sotomayor, with 7 justices joining, agreed with Facebook. The Court evaluated the text of the Act and used natural reading guidelines to rule that the modifier (“using a random or sequential number generator”) must apply to both verbs listed in the beginning of the phrase. This is especially clear here, where there is a comma separating the verb phrasings (“store or produce telephone numbers to be called”) from the modifier.
Further, the Court sided with Facebook when it considered the statutory context of the TCPA:
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.Facebook v. Duguid Opinion at Syllabus.
In the end, the Court was unwilling to extend TCPA protections to consumers contacted by devices that simply store numbers but do not use random or sequential number generators. This, the Court acknowledges a couple times, would include any modern cell phone and would be overbroad.
Justice Alito filed an opinion concurring in the judgement but advising caution in what the Court called the “series-qualifier” canon. The Court used this to apply the modifier at the end of a list to the entire noun or verb series before it. Alito gives examples of when this canon may not lead to the most “natural” reading of a text and thus advises that the canon not be strictly followed.