Antitrust Law Daily Facebook’s text messages did not violate TCPA, High Court rules
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Thursday, April 1, 2021

Facebook’s text messages did not violate TCPA, High Court rules

By Jody Coultas, J.D.

To qualify as an automatic telephone dialing system, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.

The Supreme Court issued a unanimous decision defining a key element of the Telephone Consumer Protection Act (TPCA) and overturning a Ninth Circuit ruling holding Facebook, Inc. liable for sending unwanted text messages using an automatic telephone dialing system. The opinion, issued by Justice Sotomayor, agreed with the tech giant that the suit did not allege that it sent text messages to "randomly or sequentially generated" numbers, but rather that Facebook sent targeted texts to phone numbers already in its database. Because Facebook’s text notification system neither stored nor produced numbers "using a random or sequential number generator," it was not an autodialer and thus did not violate the TCPA (Facebook, Inc. v. Duguid, April 1, 2021, Sotomayor, S.).

Facebook has an optional security feature that sends users "login notification" text messages when an attempt is made to access their Facebook account from an unknown device or browser. To opt in to this service, the user must provide and verify a cell phone number to which Facebook can send messages.

In 2014, Noah Duguid began receiving text messages on his cell phone from Facebook, indicating as a security precaution that an unrecognized browser was attempting to access his account. However, Duguid did not have a Facebook account and had no way to log in to get more information or stop the messages. Instead, Duguid replied to the text messages, but the messages continued from January 2014 through October 2014.

In March 2015, Duguid filed a class action lawsuit in the federal district court in Oakland, California, alleging that Facebook violated the TCPA since the messages he received were being placed by an automatic telephone dialing system (ATDS). Facebook moved to dismiss the claims, asserting that its notification system for log in security was not an ATDS, as the messages sent were targeted to specific phone numbers and not the sequential or random number behavior associated with an ATDS. The district court ruled in Facebook’s favor and dismissed the case.

On appeal, in June 2019, the U.S. Court of Appeals in San Francisco reversed the district court and held that the consumer adequately stated a claim under the TCPA by alleging that Facebook used an automated telephone dialing system to store numbers to be called and dialed those numbers automatically.

Facebook asked the Supreme Court to overturn the decision, arguing that it conflicted with the Court’s First Amendment jurisprudence and made almost any call or text made with a smart phone illegal under the TCPA. The question before the Court was whether the definition of an ATDS encompassed equipment that can "store" and dial telephone numbers, even if the device does not "us[e] a random or sequential number generator."

Textual analysis. Based on the court’s reading of the plain language of the statute, the Court concluded that the most natural interpretation requires that an autodialer is equipment that uses a random or sequential number generator for storing or producing numbers. Section 227(a)(1) of the TCPA defines an autodialer as: "equipment which has the capacity—"(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and "(B) to dial such numbers." At issue here was whether the clause "using a random or sequential number generator" in 227(a)(1)(A) modifies both of the two verbs that precede it ("store" and "produce"), as Facebook argued, or only the closest one ("produce"), as argued by Duguid. Using its interpretative rule, referred to as the "series-qualifier canon," the Court concluded that both antecedent verbs, "store" and "produce," are qualified by the phrase "using a random or sequential number generator." Also, the court noted that there was "no grammatical basis," for arbitrarily stretching the modifier back to include "produce," but not so far back as to include "store." This definition excluded equipment like Facebook’s login notification system, which did not use such technology.

Statutory context. The Court noted that the statutory context confirmed that the TCPA’s autodialer definition excludes equipment that does not use a random or sequential number generator. Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity. "Expanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel," the Court said. A ruling in favor of Duguid would expand the definition of an autodialer to virtually all modern cell phones, which have the capacity to store telephone numbers and dial such numbers.

Duguid’s counterarguments. Duguid argued that in defining autodialer, the Court should apply the phrase "using a random or sequential number generator" to modify only "produce," which, unlike the verb "store," is closely connected to the noun "generator." Duguid also argued that, at the time of the TCPA’s enactment, the technical meaning of a "random number generator" invoked ways of producing numbers, not means of storing them.

The Court held that Duguid arguments failed to overcome the clear commands of the statute’s text and broader context. Duguid’s interpretation of "autodialer" was contrary to the ordinary reading of the text and, by classifying almost all modern cell phones as autodialers, would produce an outcome that makes even less sense. Also, Duguid reliance on "distributive canon," which provides that a series of antecedents and consequents should be distributed to one another based on how they most naturally relate in context, was misplaced. The Court noted that the distributive canon was not applicable in this case because "there is only one consequent to match to two antecedents, and in any event, the modifying phrase naturally relates to both antecedents."

Further, Duguid warned that accepting Facebook’s interpretation will "unleash" a "torrent of robocalls" and that the Court should consider whether the equipment at issue has the "capacity to dial numbers without human intervention." The Court felt that Duguid greatly overstated the effects of accepting Facebook’s interpretation, and that the issue was best left to Congress to address. The Court must interpret what Congress wrote, which is that "using a random or sequential number generator" modifies both "store" and "produce." The Court declined to rewrite the TCPA and held that the definition excluded equipment like Facebook’s login notification system, which does not use such technology.

Concurrence. Justice Alito wrote a separate concurring opinion to address the Court’s "heavy reliance" on the "series-qualifier" canon. The Court referred to this canon as a "rul[e] of grammar," despite the Scalia-Garner treatise making clear that interpretive canons "are not ‘rules’ of interpretation in any strict sense but presumptions about what an intelligently produced text conveys." Alito noted that canons of interpretation can help in figuring out the meaning of troublesome statutory language. However, he argued that when these canons are treated like rigid rules, they can "lead us astray." Also, "when the Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations. No reasonable reader interprets texts that way."

For details about these and other petitions and cases pending before the Supreme Court, please consult the Antitrust Law Daily Supreme Court chart.

The case is Dkt. 19-511.

Attorneys: Paul D. Clement (Kirkland & Ellis LLP) for Facebook, Inc. Elizabeth B. Prelogar, U.S. Department of Justice, for Noah Duguid.

Companies: Facebook, Inc.

MainStory: TopStory ConsumerProtection

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