• by Wendy Davis  @wendyndavis, October 26, 2020

Advocacy groups, Democratic lawmakers and attorneys general from 36 states and the District of Columbia are urging the Supreme Court to rule against Facebook in a battle over unwanted text messages.

The fight stems from allegations that Facebook violated a federal robotexting law by sending text messages about a possible security breach to Montana resident Noah Duguid, who had apparently been assigned a recycled phone number. Duguid says the messages repeatedly notified him his account had been accessed, even though he didn't have an account with the service.

Duguid claimed in a 2015 class-action complaint that the messages violated the Telephone Consumer Protection Act, which prohibits companies from using autodialers to send text messages without recipients' consent.

The legal battle now at the Supreme Court centers on the Telephone Consumer Protection Act's definition of “autodialer.”

Facebook says Duguid's allegations regarding text-messaging, even if true, wouldn't prove Facebook used an “autodialer,” which is defined as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers.

The company says that if Duguid's allegations were true, they would only show that Facebook's texting system generated numbers in response to information about potential security breaches -- as opposed to randomly.

But the state attorneys general, advocacy groups and others argue that equipment capable of storing and dialing numbers is an autodialer, regardless of whether the numbers were randomly generated.

In papers filed Friday, attorneys general from 36 states and the District of Columbia argue that a ruling that interprets autodialers narrowly will hinder efforts to fight fraud, including telemarketing scams that promise miracle cures for COVID-19.

“States are on the front lines in the fight to prevent these and other abuses of telephone technology,” they write in a friend-of-the-court brief. “While States use the TCPA as a critical tool to protect consumers from illegal and fraudulent calls, Facebook threatens to undermine that effort.”

The watchdog Electronic Privacy Information Center is also urging the Supreme Court to reject Facebook's interpretation of the word "autodialer," arguing that the company's stance would exempt many “mass dialing systems” from the robotexting law.

“The TCPA is a broad statute that codifies the presumption that individuals do not want to receive unsolicited robocalls,” the privacy organization writes. “It would thus be inconsistent with the text and overall structure of the TCPA to narrowly interpret the cell phone autodialer prohibition.”

Twenty-three Democratic lawmakers, including Sen. Ed Markey (Massachusetts), who authored the House version of the 1991 law, also are siding against Facebook.

“A narrow reading of the TCPA to exclude dialing from databases and limit application to numbers that were randomly generated would reverse decades of precedent and gives a green light to telemarketers and scammers who will suddenly be free to initiate billions of automated calls to Americans who have a united distain for intrusive robocalls,” the lawmakers argue in their own friend-of-the-court brief.

Others, including the U.S. Department of Justice, Chamber of Commerce, Home Depot and Lyft, are backing Facebook.

Judges throughout the country have interpreted the word autodialer differently. A trial judge agreed with Facebook and dismissed Duguid's lawsuit, but the 9th Circuit Court of Appeals came to a different conclusion and reinstated the complaint. 

The Supreme Court will hear arguments about the matter on December 8.