• by Wendy Davis  @wendyndavis, September 7, 2017

A Montana resident who says Facebook repeatedly sent him unwanted text messages is asking an appellate court to revive his lawsuit against the company.

Noah Duguid, who apparently had been assigned a recycled phone number by his carrier, alleges that the text messages violated the Telephone Consumer Protection Act -- a federal law that prohibits companies from using automated dialers to send text messages to people without their consent.

He alleged in a 2014 class-action complaint that Facebook repeatedly sent him messages stating that his account had been accessed -- even though he never had an account with the social networking service. Duguid says in court papers that he emailed Facebook with complaints about the texts, but that the company persisted in sending them.

U.S. District Court Judge Jon Tigar in the Northern District of California dismissed the lawsuit, ruling that Duguid's allegations didn't support the conclusion that Facebook used a robo-dialer to send the messages.

Duguid is now asking the 9th Circuit Court of Appeals to reverse that ruling. Among other arguments, he says that consumers like himself shouldn't have to allege facts about the "inner workings" of companies' text-messaging systems in order to bring lawsuits.

"The lower court’s dismissal renders it impossible to seek any redress for unsolicited text messages and communicates to Facebook and others similarly situated to fire away," he argues in papers filed late last week with the 9th Circuit Court of Appeals. "No consumer will know what system is exactly being used, and how exactly it works."

The 9th Circuit recently reinstated a separate lawsuit that also alleged violations of the Telephone Consumer Protection Act. The appellate court said in that matter that equipment "does not need to dial numbers or send text messages 'randomly'" to be considered an autodialing system.

Facebook is currently battling at least two other lawsuits alleging violations of the robo-texting law. District of Columbia resident Christine Holt, who says she doesn't have a Facebook account, is suing the company for allegedly sending her unwanted SMS messages after she obtained a cell phone from MetroPCS. Also, Florida resident Colin Brickman, alleged that the company is violating the anti-spam law by sending users messages about their friends' birthdays.

Trial judges in both of those matters rejected Facebook's arguments to dismiss the lawsuits at an early stage. Facebook has asked the 9th Circuit to hear an appeal of those rulings.

Two years ago, the FCC tightened the robotexting law by issuing new regulations, including one that prohibits companies from sending more than one autodialed text (or make one robocall) to a reassigned number -- even if the original owner consented to receive texts.

The debt collection association ACA International, U.S. Chamber of Commerce and others have asked the D.C. Circuit Court of Appeals to vacate the new regulations. That court is still considering the matter.