• by Wendy Davis  @wendyndavis, October 22, 2019

Facebook is asking the Supreme Court to review a recent ruling that revived a lawsuit accusing the company of violating a federal robo-texting law.

The lower court's ruling “is profoundly wrong and profoundly important,” Facebook writes in a petition filed last week with the Supreme Court.

That ruling, issued earlier this year by the 9th Circuit Court of Appeals, stemmed from a lawsuit by Montana resident Noah Duguid, who said Facebook 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 notified him via text that his account had been accessed -- even though he never had an account with the service.

His lawsuit alleged the messages violated the Telephone Consumer Protection Act, which prohibits companies from using auto dialers to send texts to consumers without their consent. That law defines auto dialer 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 they have arrived at different conclusions.

Facebook argued its texting system wasn't an auto dialer because it didn't generate the numbers randomly, but in response to information about a potential security breach.

The 9th Circuit disagreed, ruling that Duguid's allegations, if true, were sufficient to establish that Facebook used an auto dialer to send him texts.

Facebook also argued to the 9th Circuit that the robo-texting law violates the First Amendment, because the law exempts 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 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.

Facebook is now telling the Supreme Court that the 9th Circuit incorrectly decided both of the issues the company raised.

“To say that the decision below will carry extraordinary practical consequences is an understatement,” Facebook writes in its petition for review.

The company argues the 9th Circuit's definition of “autodialer” is so broad that it could cover almost all modern telephones.

“This is a stunning reimagination of a statute that Congress passed to curb the telemarketing abuses of the late 1980s and early 1990s,” Facebook writes. “Given the volume of TCPA lawsuits flooding the lower courts, the scope of the TCPA is an issue of substantial national importance.”

Facebook also says the 9th Circuit should have invalidated the law's prohibition on robo-texting after deciding the exception for debt collection was unconstitutional.

“The Ninth Circuit accepted Facebook’s First Amendment arguments and yet denied it any meaningful relief,” the company writes. “That perverse result only underscores the need for this Court’s review.”