U.S. Supreme Court

Supreme Court will decide circuit split over Facebook’s use of text messages

  • Print

facebook on phone

Image from Shutterstock.com.

The U.S. Supreme Court granted Facebook Inc.’s request Thursday to review a proposed class action that accuses the social media company of sending unwanted text messages.

In its cert petition, Facebook argues that the 9th U.S. Circuit Court of Appeals at San Francisco misinterpreted the Telephone Consumer Protection Act of 1991, which prohibits calls made to a cellphone with an “automatic telephone dialing system.”

The 9th Circuit agreed that the law was unconstitutional but took “the extraordinary step” of eliminating an exemption that allows calls to be made “to collect a debt owed to or guaranteed by the United States” or “for emergency purposes,” Facebook says.

The appeals court also adopted a broader definition of an automatic telephone dialing system that “encompasses any device that can store and automatically dial telephone numbers.”

“That holding—which conflicts with the 3rd and D.C. Circuits—sweeps into the TCPA’s prohibition almost any call or text made from any modern smartphone,” Facebook says in its cert petition.

Facebook became the target of the putative class action in March 2015, when Noah Duguid alleged that the company violated the TCPA by sending several text messages that alerted him to an unrecognized browser attempting to access a Facebook account associated with his phone number.

Facebook has argued that the TCPA’s prohibition violates the First Amendment, and its login notifications fall within the exception for emergencies.

“The Supreme Court definitely needed to wade into this mess and resolve the question of what equipment is restricted by the almost 30-year-old statute,” Becca Wahlquist, a partner at Snell & Wilmer, told Law360. “There are thousands of TCPA litigations and arbitrations pending throughout the country, where claims of illegal use of an ATDS are at issue, when the question of ‘what is an ATDS’ has no definitive answer from federal courts.”

In addition to the 3rd and D.C. Circuits, the 7th and 11th Circuits have narrowly interpreted automatic telephone dialing systems to cover only devices that send messages or make calls to randomly or sequentially generated phone numbers, according to Law360.

Meanwhile, in April, the 2nd Circuit joined the 9th Circuit in broadly considering an autodialer to encompass all devices that can store and automatically dial numbers.

The case is Facebook Inc. v. Duguid.

Give us feedback, share a story tip or update, or report an error.