• by Wendy Davis , Staff Writer @wendyndavis, July 9, 2020

The Supreme Court on Thursday agreed to decide whether Facebook may have violated a robo-texting law by sending unwanted text messages to a Montana resident.

The court's ruling in the case could affect numerous businesses that have been accused of violating the Telephone Consumer Protection Act, which regulates robocalling and robotexting.

The battle dates to 2014, when Noah Duguid alleged in a class-action complaint that Facebook repeatedly notified him via text that his account had been accessed. Duguid, who says he never had an account with the service, apparently had been assigned a recycled phone number by his carrier.

He claimed the messages ran afoul of the Telephone Consumer Protection Act's prohibition on using autodialers to text people without their consent. That law, passed in 1991, originally barred companies from robocalling cell phones without consumers' consent. The measure, which was later expanded to prohibit robotexting, provides for damages ranging from $500 to $1,500 per violation.

The statute defines autodialer as equipment that's 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.

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

The 9th Circuit Court of Appeals disagreed, ruling that Duguid's allegations regarding Facebook's automation system, if true, were sufficient to establish that Facebook used an autodialer to send texts.

Duguid “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.”

Last year, Facebook urged the Supreme Court to take up the case. The company argued in its petition that the lower court's definition of autodialer was so broad it could cover “virtually every modern smartphone.”

“This is a stunning reimagination of a statute that Congress passed to curb the telemarketing abuses of the late 1980s and early 1990s,” Facebook wrote in its petition for review. “The scope of the [Telephone Consumer Protection Act] is an issue of substantial national importance.”

This week, Facebook reiterated its request.

“The courts of appeals are in irreconcilable conflict on an important and oft-litigated question that dictates whether the statute reaches specialized robocalling equipment or every modern smartphone,” Facebook wrote in papers filed Tuesday. “Billions of dollars in liability turn on the answer.”