Court Revives Robo-Texting Case Against Facebook

Siding against Facebook, a federal appellate court has revived a class-action lawsuit accusing the company of violating a robo-texting law.

The decision, issued Thursday by a three-judge panel of the 9th Circuit Court of Appeals, means Facebook must now face a complaint by Montana resident Noah Duguid, who alleged the company repeatedly sent him unwanted text messages.

Duguid, who apparently had been assigned a recycled phone number by his carrier, alleged in a 2014 class-action complaint that Facebook repeatedly sent him messages stating that his account had been accessed -- although he never had an account with the social networking service.

Duguid said in court papers that he emailed Facebook with complaints about the texts, but the company persisted in sending them.



Duguid alleged that the texts violated the Telephone Consumer Protection Act, which prohibits companies from using autodialers to send robo-texts to consumers without their consent.

The Telephone Consumer Protection Act defines autodialer as equipment that is capable of storing and dialing numbers using a random or sequential generator. Judges across the country have struggled to figure out when texting systems meet that definition, and have arrived at different conclusions.

U.S. District Court Judge Jon Tigar in the Northern District of California dismissed Duguid's lawsuit, ruling that even if his allegations were true, they wouldn't prove that Facebook's text-dialing system was an “autodialer.”

Duguid then asked the 9th Circuit to reinstate his claims.

Facebook countered that Tigar's decision was correct and shouldn't be disturbed. The company said its texting system didn't generate the numbers randomly, but in response to information about a potential security breach.

The 9th Circuit rejected Facebook's argument, ruling that Duguid's claims, if true, were sufficient to establish that Facebook used an autodialer to send him texts.

“He alleges that Facebook maintains a database of phone numbers and explains how Facebook programs its equipment to automatically generate messages to those stored numbers,” the judges wrote. “The amended complaint explains in detail how Facebook automates even the aspects of the messages that appear personalized.”

Facebook also argued to the 9th Circuit that the Telephone Consumer Protection Act itself violates the First Amendment, because the law exempts robo-texts aimed at collecting debts owed to the government.

Facebook said it's unconstitutional to impose different rules on companies engaged in debt collections than other types of communications.

The 9th Circuit agreed that the Telephone Consumer Protection Act's exception for debt collectors is unconstitutional, but said the remedy is to remove that provision from the statute.

“We reject Facebook’s challenge that the TCPA as a whole is facially unconstitutional, but we sever the debt-collection exception as violative of the First Amendment,” the judges wrote.

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