Facebook petitions the High Court to decide the constitutionality of the Act and the scope of the TCPA’s definition of an ATDS. Editor’s note: This content is available to members only.
10/21/2019 9:00
Last Friday, counsel for Facebook filed a petition for Writ of Certiorari seeking Supreme Court review of the Ninth Circuit’s decision in Duguid v. Facebook, Inc. in favor of the plaintiff. In its petition, Facebook poses issues related to the Ninth Circuit’s decision to strike down as unconstitutional the TCPA’s government-debt-collection exception and sever it from the rest of the Act as well as its expansive definition of an ATDS established in Marks v. Crunch San Diego, LLC.
Facebook’s petition stems from claims that Facebook violated the TCPA by sending login-notification text messages indicating that someone was trying to access a user’s Facebook account. Facebook persuaded the district court to dismiss the case, on the grounds that the plaintiff failed to allege that the messages were sent using an automatic telephone dialing system. But the Ninth Circuit reversed holding that the Marks ATDS “definition governs this appeal”, and that plaintiff had adequately alleged that Facebook placed calls that come within the ambit of that definition. Facebook did successfully argue that the government-debt exception rendered the TCPA’s prohibition on calls from an ATDS unconstitutional but proceeded on the premise that the exemption, rather than the prohibition as argued by Facebook, was unconstitutional – another point Facebook argues in its petition why this case is ripe for Supreme Court review.
“The Ninth Circuit’s extraordinary decision finding an Act of Congress unconstitutional, but then denying the successful objecting party all relief by rewriting the statute to ban more speech, plainly merits this Court’s review,” Facebook wrote in its petition.
Facebook also asks the High Court to settle the age-old debate surrounding the statutory definition of an autodialer. Facebook’s petition spotlights the circuit split and inconsistency in courts' decisions when analyzing calling equipment and “whether an ATDS refers to a small universe of rapidly obsolescing robocalling machines or virtually every modern smartphone”, Facebook wrote in its petition.
Were the Supreme Court to grant Facebook’s petition and hear its challenges to the TCPA, ACA International’s members could realize much needed clarity and security in its business practices. Through funds from ACA International’s Industry Advancement Fund, ACA will provide amicus support for Facebook’s petition for Writ of Certiorari imploring the High Court to hear this important appeal. As always, ACA International will continue to monitor this case and provide its members additional details as those are made known.