Facebook v. Duguid

Facebook v. Duguid (Docket 19-511) is a pending United States Supreme Court case related to the definition and function of auto dialers under the Telephone Consumer Protection Act of 1991 (TCPA) to send unsolicited text messages.

Facebook v. Duguid
Argued December 8, 2020
Full case nameFacebook, Inc. v. Noah Duguid, et al.
Docket no.19-511
Case history
Prior
  • Motion to dismiss granted, Duguid v. Facebook, Inc., No. 3:15-cv-00985, 2017 WL 635117 (N.D. Cal. Feb. 16, 2017)
  • Reversed and remanded, 926 F.3d 1146 (9th Cir. 2019)
  • Cert. granted, Facebook, Inc. v. Duguid, 2020 WL 3865252 (July 9, 2020)
Questions presented
Whether the definition of automatic telephone dialing system in the Telephone Consumer Protection Act of 1991 encompasses any device that can "store" and "automatically dial" telephone numbers, even if the device does not "us[e] a random or sequential number generator".
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Brett Kavanaugh · Amy Coney Barrett

Background

The Telephone Consumer Protection Act of 1991 (TCPA) was passed to cut down the amount of unsolicited calls that consumers were receiving. Among its provisions, the TCPA disallowed the use of automated dialers from being used to contact consumers through services that may cost the consumer money, such as through cell phones or text messaging, with violations accessed and fined by the Federal Communications Commission (FCC). Amendments have been made to the TCPA; relevant to this case was an amendment added in 2015 that exempted automated calls made to pay-for consumer lines for federal debt collection purposes. Since its inception, this "autodialer" provision of the TCPA has been challenged as a violation of free speech rights under the First Amendment of the United States Constitution, but the federal Circuit Courts have generally upheld all challenges to the statute. The 2015 amendment created a new line of arguments to challenge the autodialer statute of the TCPA as it carved out an exception for one type of speech and making the whole statute fundamentally content-based and unconstitutional.[1] Concurrent to this case, the judicial proceedings of Barr v. American Assn. of Political Consultants, Inc.,[2] one of the direct challenges to the 2015 amendment that sought to invalidate the autodialer statute of the TCPA, began working its way to the Supreme Court.[3]

Starting in 2014, Noah Duguid began receiving text messages on his cell phone from Facebook warning him about suspicious account activity, despite the fact he had not set up a Facebook account. Duguid reached out to Facebook to rectify the situation, but Facebook did nothing to stop the messages. Duguid filed a class-action lawsuit in the United States District Court for the Northern District of California in March 2015, asserting that Facebook violated the autodialer statute of the TCPA because the messages he received were being placed by an automatic telephone dialing system (ATDS) and seeking US$1,500 for each message he had received. Facebook objected to the lawsuit, challenging both Duguid's claim that their notification system for logic security was an ATDS, as the messages sent were targeted to specific phone numbers and not the sequential or random number behavior associated with ATDS, and asserting that the autodialer statute of the TCPA with the 2015 amendment was a content-based speech restrictions that violated the First Amendment. Due to the latter complaint, the federal government injected themselves into the case to seek its dismissal in favor of Facebook as to protect the constitutionality of the TCPA. The judge agreed on the case's dismissal, ruling in Facebook's favor that Duguid had failed to show that Facebook's logic security notification system qualified as an ATDS.[4]

Duguid appealed to the United States Court of Appeals for the Ninth Circuit.[1] Facebook's defense was again joined by the federal government in interest of protecting the constitutionality of the TCPA statute. Though Facebook reasserted its stance that their notification system was not an ATDS, the Ninth Circuit had precedence from Marks v. Crunch San Diego, LLC[5] that an ATDS was not limited to devices that dialed numbers sequentially or randomly, but also include those that could dial stored numbers, and that it categorically fit a device that send "automated, unsolicited, and unwanted" messages to consumers.[6] The Ninth Circuit thus ruled in Duguid's favor in that Facebook had used a ATDS and proceeded then to evaluate the First Amendment challenge to the autodialer statute raised by Facebook.[7] In this, the Ninth Circuit determined that the 2015 amendment did add content-based exemptions for free speech and thus was unconstitutional, but was also severable from the rest of the TCPA, leaving in place the autodialer statute. As such, the Circuit Court ruled in favor of Duguid and that Facebook had violated the autodialer statute of the TCPA.[8]

Supreme Court

The Supreme Court held oral arguments on December 8, 2020. Duguid was represented by Sergei Lemberg, with oral arguments by Bryan A. Garner. Facebook was represented by Kirkland & Ellis.[9]

Facebook petitioned their case to the Supreme Court, seeking judgement on two questions: whether the auto dialer statute was an unconstitutional content-based restriction on free speech, and whether the TCPA definition of an ATDS includes any device that can store and dial stored numbers. In the latter case, Facebook identified that the Ninth Circuit's ruling had established a split circuit with a ruling out of the United States Court of Appeals for the Third Circuit. On July 6, 2020, the Supreme Court issued its judgement in Barr v. American Assn. of Political Consultants, Inc. which affirmed that the 2015 amendment to the TCPA was unconstitutional but was also severable from the TCPA. The Court subsequently certified Facebook's case, but limited the case to the second question on the definition of an ATDS.[6] In oral hearings, the Justices debated on the statutory interpretation of the law with Duguid's legal council, Bryan A. Garner, one of the experts in the areas of law and grammatical interpretation.[10]

References
  1. Kramer, Alexis (March 11, 2019). "Facebook, Charter Say Robocall Law Violates Free Speech". Bloomberg News. Retrieved July 10, 2020.
  2. Barr v. American Assn. of Political Consultants, Inc., No. 19-631, 591 U.S. ___ (2020).
  3. Edelman, Gilad (May 6, 2020). "Is There a Constitutional Right to Make Robocalls?". Wired. Retrieved July 6, 2020.
  4. Duguid v. Facebook, Inc., No. 3:15-cv-00985, 2017 WL 635117 (N.D. Cal. Feb. 16, 2017).
  5. Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir 2018).
  6. Robertson, Adi (July 10, 2020). "Supreme Court will hear Facebook robocalling case". The Verge. Retrieved July 10, 2020.
  7. Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019).
  8. Kramer, Alexis (October 17, 2019). "Facebook Asks Supreme Court to Decide Robocall Law's Validity". Bloomberg News. Retrieved July 10, 2020.
  9. https://www.supremecourt.gov/DocketPDF/19/19-511/158020/20201016163228558_Duguid%20Brief%20Final%2010-16.pdf
  10. Nanos, Elura (December 8, 2020). "Supreme Court Justices Appeared Dazzled by Legal Celebrity at Oral Arguments in Robocall Case Against Facebook". Law & Crime. Retrieved December 9, 2020.
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