Supreme Court Urged To Stay Out Of Facebook Robo-Texting Battle

The Supreme Court should reject Facebook's request to intervene in a lawsuit accusing it of violating a federal robo-texting law, attorneys for Montana resident Noah Duguid argue in papers filed Friday.

“Facebook asks this court to validate the practice of making robocalls to cell phones over their owners’ objection,” Duguid's lawyers write. “Facebook presents no compelling reason for the court to entertain its arguments.”

The papers come in response to Facebook's request that the Supreme Court review a ruling issued last year by the 9th Circuit Court of Appeals, which allowed Duguid to proceed with a claim that Facebook violated the Telephone Consumer Protection Act by allegedly sending him unwanted text messages.

The legal battle dates to 2014, when Duguid alleged in a 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.

Duguid, whose carrier had apparently assigned him a recycled phone number, alleged the messages ran afoul of the federal robotexting law. That law prohibits companies from using “autodialers” to send texts to consumers without their consent, and provides for damages ranging from $500 to $1,500 per violation.

The measure defines an autodialer as equipment that is capable of storing and dialing numbers using a random or sequential generator. But that definition has been interpreted differently by judges throughout the country.

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

The appellate judges in the 9th Circuit disagreed, based on their interpretation of the word autodialer. They defined that term as equipment capable of storing numbers and automatically dialing them.

Facebook recently asked the Supreme Court to review that ruling. Among other arguments, Facebook says the appellate court's definition of autodialer is so broad it could potentially cover all smartphones.

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

Duguid's lawyers, including the watchdog Public Citizen, counter that Facebook is interpreting the opinion too broadly.

“This case has nothing to do with calls made by smartphones,” counsel writes. “It concerns use of sophisticated technology to send automated text messages to cell phones, and nothing in the result threatens liability for ordinary phone calls.”

Facebook also argues the robo-texting law violates the First Amendment because the law exempts currently texts aimed at collecting debts owed to the government. The company says it is unconstitutional to impose different rules on companies engaged in debt collections than for other communications.

Duguid's lawyers counter that Congress didn't exempt texts related to debts owed to the government until 2015 -- which was after Facebook allegedly sent the texts to Duguid. Therefore, Duguid's lawyers write, questions about the constitutionality of the exemption are irrelevant to Facebook's liability for texts sent before 2015.

“A caller who used an [autodialer] to call a cell phone to collect government-backed debt in 2014, when Facebook sent Mr. Duguid its messages, would, under the law at that time, be liable to the same extent as Facebook,” they write.

The high-profile battle has drawn the attention of outside organizations -- including the largest business group, the U.S. Chamber of Commerce and the Business Roundtable, which represents the biggest companies in America. Both recently filed friend-of-the-court briefs that urged the Supreme Court to curb people's ability to sue over unwanted texts.

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