• by Wendy Davis  @wendyndavis, September 14, 2020

Facebook is garnering support from a host of organizations and business -- including the U.S. Chamber of Commerce, Internet Association, Home Depot, Lyft and Postmates -- in a battle over alleged robotexting.

The companies and business groups are urging the Supreme Court to dismiss a lawsuit brought against Facebook by Montana resident Noah Duguid, who claims the social networking service violated a federal law by sending him unwanted text messages.

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, who apparently had been assigned a recycled phone number, claimed the messages violated the Telephone Consumer Protection Act. That law, passed in 1991, prohibits companies from using autodialers to call consumers without their consent. In 2009, a federal appellate court said the law also applies when businesses use autodialers to send text messages to consumers.

Facebook argues the matter should be dismissed on the grounds that Duguid's allegations, even if accepted as true, wouldn't show the company used an autodialer.

That term is defined by the Telephone Consumer Protection Act as equipment capable of storing and dialing numbers using a random or sequential generator.

Facebook says its system didn't meet that definition because it wasn't capable of generating numbers randomly. Instead, the system only generated numbers in response to information about potential security breaches, assuming Duguid's allegations are true.

Judges across the country have considered this issue in numerous cases, and have arrived at different conclusions. In Duguid's lawsuit, a federal district court judge accepted Facebook's argument and dismissed the lawsuit.

The 9th Circuit Court of Appeals reversed that decision and reinstated the matter last year, ruling that Duguid's complaint alleged that Facebook “maintains a database of phone numbers” and “programs its equipment to automatically generate messages to those stored numbers.”

The Chamber of Commerce and other business groups argue in a friend-of-the-court brief filed late last week that the 9th Circuit's definition of the word “autodialer” is too broad.

“Customers expect, and even demand, routine communications like health care appointment reminders, delivery notifications, low-balance alerts, and fraud warnings,” the Chamber of Commerce, Business Roundtable, Internet Association and other organizations write.

To transmit that kind of information to consumers, businesses “must use equipment that stores and dials numbers, often automatically,” the groups add.

They also say the 9th Circuit's definition of autodialer could encompass every smartphone. If so, the lower court's interpretation of the term “violates the First Amendment by subjecting every call from one smartphone to another to potential liability, and by suppressing a tremendous amount of desired, protected communications between businesses and their customers,” the Chamber of Commerce and other associations contend.

Lyft, Postmates and the technology company Eaze argue in a separate friend-of-the-court brief that the lower court's definition of autodialer will hinder new businesses that rely on smartphone apps.

“Consumers want real-time communications from businesses: e.g., text messages about when to expect drivers; alerts about new deals or promotions; or communications with shoppers who cannot find the originally ordered product,” the companies write.

They add that a broad definition of autodialer “would interfere with operations, communications, and conveniences that consumers want and now expect.”

Home Depot adds in its own friend-of-the-court brief that the lower court's definition of autodialer presents “immense” practical problems for businesses.

The retailer argues that Congress originally passed the Telephone Consumer Protection Act in order to tackle “a particularly intrusive form of marketing, in which a company would call large blocks of phone numbers to deliver an advertising message.”

The store argues that the law “has been stretched into a broad-spectrum law requiring prior consent before calling cell phones.”

“That reach has now given cover to thousands of lawsuits against companies that were not using random or sequential dialing, many of which were not even telemarketing at all,” Home Depot writes.

“The practical problems are immense,” Home Depot adds. “Whereas compliance with the original auto-dialer prohibition was straightforward -- an auto-dialer was a costly piece of equipment useful only for the intrusive telemarketing that Congress prohibited -- a business cannot comply easily (or perfectly) with the new version.”