• by Wendy Davis  @wendyndavis, October 25, 2023

Meta Platforms is urging the Supreme Court to leave in place a circuit court's decision dismissing a lawsuit claiming that the company violated a robotexting law by sending unsolicited messages to a Facebook user.

The decision, issued by the 9th Circuit Court of Appeals, “fully aligns with text, statutory context, and this court’s precedent,” Meta writes in papers filed this week with the Supreme Court.

Meta's papers come in response to Colin Brickman's request that Supreme Court take up a dispute about the scope of the Telephone Consumer Protection Act, which restricts companies' ability to use “autodialers”, make phone calls or send text messages. The battle centers on the 32-year-old statute's definition of “autodialer,” and whether that term covers equipment that can call marketing lists, or whether it only covers equipment that calls randomly or sequentially generated numbers.

Brickman, a Facebook user, alleged in a 2016 class-action complaint that Meta violated the Telephone Consumer Protection Act by sending him an unsolicited text message about a friend's birthday.

Meta countered that its text-sending system isn't an autodialer because it doesn't randomly generate the numbers that are dialed.

The statute defines autodialer as equipment that is able “to store or produce telephone numbers to be called, using a random or sequential number generator” and “to dial such numbers.”

The 9th Circuit Court of Appeals sided with Meta, ruling that its messaging system wasn't covered by the robotexting law because the system didn't randomly or sequentially generate the numbers it texted.

But Brickman's lawyers argue that the 9th Circuit misinterpreted autodialer. That term, counsel argues, doesn't only cover systems that generate numbers, but also applies to systems that store numbers randomly or sequentially.

The attorneys added that robocalls and texts to numbers in a marketing lists would never be covered by the law, if it only applied to calls made to numbers that were randomly or sequentially generated.

Meta counters in its new papers that Brickman's proposed interpretation of autodialer would “sweep in a vast array of commonplace technology” and could turn “commonplace cell phone usage into a basis for crushing liability.”

The Biden administration separately urged the Supreme Court to decline to take up the dispute, noting that the Federal Communications Commission has sought comments from the public about the scope of the anti-robotexting statute.

“In the government’s view ... the court’s intervention is not warranted at this time,” U.S. Solicitor General Elizabeth Prelogar wrote in papers filed Monday.

“The FCC has open proceedings considering the question presented,” she continued, adding, “In light of the open FCC proceedings, review by this Court is not warranted.”