Facebook v. Duguid
- Supreme Court Weakens Autodialer Protections:
Today, the U.S. Supreme Court ruled in Facebook v. Duguid that individuals can only claim protection under the Telephone Consumer Protection Act from unwanted calls made using a mass dialing system or "autodialer" if the system uses a random or sequential number generator to either store or produce the numbers called. EPIC filed an amicus brief urging the Court to interpret the autodialer restriction broadly to include systems that automatically dial numbers stored in lists or databases. EPIC argued that "narrowing the autodialer definition would not protect privacy" but would instead "put the most widely used mass dialing systems outside the scope" of the ban.(Apr. 1, 2021)
Many robocallers and would-be robocallers will interpret the Court’s decision today as essentially abrogating the autodialer restriction, which will likely lead to a surge in unwanted automated calls to cell phones. Automated calls are already a daily nuisance for Americans. Individuals increasingly ignore calls from unknown numbers because they assume the calls are robocalls, which has caused particular harm to contact tracing during COVID-19. Congress must update the autodialer restriction to protect Americans from the coming onslaught of unwanted automated calls.
But the Court’s decision today is not a total victory for robocallers. The decision does not limit the definition of an autodialer to systems that create random or sequential telephone numbers. The Court says that autodialers include systems that use random or sequential number generators to order numbers in a list. Because computer programs commonly use sequential number generators to store or pull information from a list, it is hard to think of a mass dialing system that would not use a sequential number generator at some point in the program.
Litigation will continue over the scope of the autodialer definition. Americans need protection from robocallers now, and Congress should act swiftly to update the autodialer restriction.
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The Telephone Consumer Protection Act ("TCPA") protects American consumers from invasive automated calls. One of its several provisions prohibits use of automated dialing systems (also called "autodialers") without the consent of the called party. Noah Duguid received several security alert text messages from Facebook despite not being a Facebook user and never consenting to the texts. His repeated attempts to stop the texts failed. Duguid filed a putative class action aganst Facebook, alleging violations of the TCPA's autodialer restriction. The district court dismissed the case, holding that Facebook's software was not an autodialer. The Ninth Circuit reversed. The U.S. Supreme Court has agreed to hear the case to resolve a split betweel federal courts of appeals over the proper scope of the autodialer definition.
The Telephone Consumer Protection Act was enacted in 1991 to protect consumers from unwanted automated and prerecorded calls. It bans using “any automatic telephone dialing system” (commonly called an "autodialer") to call a cell phone without the consent of the party called. The law defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential generator; and (B) to dial such numbers.” Companies that want to autodialer consumers argue that an autodialer must use a random or sequential number generator to store or produce numbers. Consumers argue the opposite: the statute targets systems that can automatically dial numbers that are stored in the system, or they can dial automatically dial numbers that the system produces with a random or sequential number generator.
The FCC has long recognized that autodialers include predictive dialers, which dial numbers from a database in anticipation of a live agent being ready to conduct the call. But in the 2015 case ACA International v. FCC, the D.C. Circuit found that the FCC's orders on the autodialer definition were inconsistent, and vacated the FCC's autodialer definition.
Since ACC International, federal courts of appeals have split over the proper scope of the autodialer ban. Prior to taking up Duguid's case, the Ninth Circuit adopted the broad definition of autodialer in Marks v. Crunch San Diego, reasoning that "using a random or sequential number generator" modifies "produce" but not "store".
Noah Duguid has never been a Facebook user. Yet, over a ten month period in 2014, Facebook sent Duguid a series of text messages containing automated security alerts for an account he didn't have. Duguid requested that the messages stop both over text and email, to no avail. Finally, Duguid sued Facebook for violating the TCPA.
In the district court, Facebook argued that Duguid failed to properly allege that Facebook's text messaging system is an autodialer because it texted numbers in a database, and did not have the capacity to dial random or sequential numbers. Facebook also argued that the autodialer restriction was unconstitutional because the exemption for callers collecting a government backed debt was an unconstitutional content-based restriction on speech. The district court dismissed the complaint based on a narrow definition of autodialer.
The Ninth Circuit reversed based on its prior decision in Marks. The Ninth Circuit also found that, while the government debt exemption violated the First Amendment, it could be severed from the remainder of the statute.
Facebook asked the U.S. Supreme Court to review the Ninth Circuit's decisions on both the autodialer and the First Amendment questions. The Court resolved the First Amendment question in Barr v. American Association of Political Consultants, and then granted review in Duguid to resolve the circuit split over the definition of an autodialer.
EPIC supports strong enforcement of the TCPA to protect American consumers from the privacy invasion of unwanted automated calls. EPIC routinely participates as amicus in TCPA cases. EPIC filed a brief in the Seventh Circuit case Gadelhak v. AT&T, which also concerned the scope of the autodialer restriction. EPIC also filed briefs in Barr v. American Association of Political Consultants (First Amendment challenge to the TCPA before the U.S. Supreme Court), Gallion v. Charter Communications (First Amendment challenge to the TCPA before the Ninth Circuit), ACA International v. FCC (challenge to the validity of FCC TCPA orders before the U.S. Supreme Court), and PDR Networks v. Carlton & Harris Chiropractic (scope of federal court deference to FCC TCPA orders before the U.S. Supreme Court). EPIC also files comments before the FCC on TCPA implementation.
U.S. Supreme Court (No. 19-511)
- Petition Stage
- Facebook's Petition for a Writ of Certiorari (Oct. 17, 2019)
- Brief of Respondent United States (Nov. 20, 2019)
- Reply Brief of Petitioner Facebook (Dec. 2, 2019)
- Brief of Respondent Noah Duguid in Opposition (Jan. 6, 2020)
- Reply Brief of Facebook (Jan. 10, 2020)
- Merits Stage
- Brief of Petitioner Facebook on the Merits (Sep. 4, 2020)
- Brief of Respondent United States Supporting Petitioner (Sep. 4, 2020)
- Amicus Briefs in Support of Petitioner
- Amicus Brief of Washington Legal Foundation (Sep. 10, 2020)
- Amicus Brief of Professional Association for Customer Engagement and Noble Systems Corporation (Sep. 10, 2020)
- Amicus Brief of Home Depot and others (Sep. 11, 2020)
- Amicus Brief of Salesforce and others (Sep. 11, 2020)
- Amicus Brief of Midland Credit Management (Sep. 11, 2020)
- Amicus Brief of Chamber of Commerce of the United States of America and others ((Sep. 11, 2020)
- Amicus Brief of Credit Union National Association (Sep. 11, 2020)
- Amicus Brief of Portfolio Recovery Associates, LLC (Sep. 11, 2020)
- Amicus Brief of Quicken Loans (Sep. 11, 2020)
- Amicus Brief of “On-Demand” Technology Platforms (Sep. 11, 2020)
- Amicus Brief of Retail Litigation Center and others (Sep. 11, 2020)
- Amicus Brief of Life Insurance Direct Marketing Association, American Property Casualty Insurance Association and Consumer Credit Industry Association (Sep. 11, 2020)
- Amicus Brief of Healthcare Companies (Sep. 11, 2020)
- Brief of Respondent Noah Duguid on the Merits (Oct. 16, 2020)
- Amicus Briefs in Support of Respondent
- Amicus Brief of EPIC (Oct. 23, 2020)
- Amicus Brief of 21 Members of Congress (Oct. 23, 2020)
- Amicus Brief of John McCurley and Dan Deforest (Oct. 23, 2020)
- Amicus Brief of State of North Carolina, 35 other states, and the District of Columbia (Oct. 23, 2020)
- Amicus Brief of Dr. Henning Schulzrinne (Oct. 23, 2020)
- Opinion (Apr. 1, 2021)
U.S. Court of Appeals for the Ninth Circuit (No. 17-15320)
- Opinion (June 13, 2019)
U.S. District Court for the District of Northern California (No. 15-cv-00985)
- Opinion (Mar. 24, 2016)
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