This article was written by Lemberg Law Expert Staff, and reviewed by Sergei Lemberg, the managing attorney of Lemberg Law and lead counsel for the plaintiff in Duguid v. Facebook.
Every American Will be Impacted by this Decision
The impact and importance of the Supreme Court’s upcoming decision on what constitutes an automatic telephone dialing system cannot be overstated. Every consumer who owns a cellphone – practically every American – will be affected. If the Court holds that a computer that dials off lists of numbers does not count as an ‘automatic dialer’, then there will be nothing to stop banks, debt collectors, marketers or even criminals from auto-dialing consumers hundreds of times per day, with or without consent. And, to make matters worse, there will be no mechanism for consumers to stop such calls or, for that matter, text messages.
How did Duguid v. Facebook make it all the way up to the Supreme Court of the United States?
The case originated in U.S. District Court, Northern District of California, after Noah Duguid began receiving text messages from Facebook notifying him that his Facebook account was accessed by various browsers. Duguid asserted that he didn’t have a Facebook account, didn’t provide Facebook with his phone number, and didn’t consent to receiving cell phone text messages from the social media giant.
The initial case filing alleged that Duguid complained to Facebook via email and asked them to stop texting. In response, Facebook sent him an automated email telling him to log onto Facebook to report problematic content. He responded, saying, “A human needs to read this email and take action. Thank you!” He received an identical automated email response.
Duguid also attempted to directly stop the text messages by replying “off” and “all off.” Each time, he received the text response, “Facebook texts are now off. Reply to turn them back on.” Yet Facebook continued to send text messages.
Under the Telephone Consumer Protection Act (TCPA), it is a violation for a business to use an automatic telephone dialing system (ATDS) to call consumers without their consent. The class action lawsuit (No. 15-cv-00985 JST, N.D. Cal.) sought redress for Duguid and other consumers who similarly received texts. The U.S. District Court granted Facebook’s motion to dismiss the case, stating that Duguid did not adequately allege that Facebook’s notifications were sent using an ATDS. The court subsequently granted Facebook’s motion to dismiss the case with prejudice.
On behalf of Noah Duguid, Lemberg Law appealed the district court’s decision to the U.S. Court of Appeals for the Ninth Circuit (No. 17-15320). In response, Facebook argued that Duguid didn’t adequately allege the TCPA violations and, if that argument didn’t work, that the TCPA violates the First Amendment. The appellate court ruled that Duguid plausibly argued that Facebook used an ATDS and rejected the social media company’s argument that, if that were true, every smartphone would be an ATDS. It also rejected the claim that the TCPA is unconstitutional. The court subsequently denied Facebook’s request for a rehearing before the entire court.
SCOTUS poised to determine, maybe once and for all, the proper definition of ATDS.
In October 2019, Facebook appealed the case to the U.S. Supreme Court. In July 2020, the court agreed to rule on one of the two questions raised, namely: Whether or not the definition of ATDS in the TCPA encompasses any device that can store and automatically dial telephone numbers, even if the device does not use a random or sequential number generator. The case is expected to be heard early in the Court’s 2020-2021 term.
The Supreme Court’s decision to review the case comes closely on the heels of its decision in Barr v. American Association of Political Consultants. In that case, the Court ruled that Congress’ 2015 amendment to the TCPA that allowed robocalls in order to collect government-backed debts was unconstitutional, but that the TCPA itself wasn’t unconstitutional.
Across the United States, appellate courts have come to different conclusions about the TCPA’s definition of ATDS. The Second and Ninth Circuits have ruled more broadly, in a way that favors consumers, while the D.C. and Third Circuits have ruled more narrowly, in a way that favors robocallers.
The Supreme Court’s ruling, expected to be issued by June 2021, will settle the issue. If Lemberg Law prevails, consumers can count on stronger TCPA protections that give them the opportunity to hold robocallers accountable. Either way, the Court’s decision will provide consumers, consumer attorneys, and robocalling companies with a bright line between legal and illegal robocalls