Ninth Circuit Tells Facebook to Be Less Social When it Comes to Texting

In April 2019, the Fourth Circuit held that the government debt collection exemption, found within the 2015 amendments to the Telephone Consumer Protection Act (“TCPA”), violates the First Amendment but that the remaining restrictions on automatic telephone dialing systems (“ATDS”) should stay in place. The Ninth Circuit recently agreed in Duguid v. Facebook, Inc.

The plaintiff, Duguid, was not a Facebook member and alleged he received autodialed text messages from Facebook without his consent. In response, Facebook sought to invalidate the TCPA’s ATDS restrictions in their entirety, arguing that (1) the 2015 TCPA amendments – which gave favorable treatment to government debt collection calls – violated the First Amendment’s free speech clause, and (2) that Constitutional infirmity should invalidate all ATDS restrictions in the TCPA. These were virtually identical to the arguments recently decided by the Fourth Circuit.

Like the Fourth Circuit, the Ninth Circuit agreed with the defendant’s First Amendment argument – i.e., that the favorable treatment for government debt collection calls vis-à-vis all other calls – was not justified by a compelling governmental interest. The Court explained that government debt collection calls “are just as invasive of privacy rights as robocalls for other purposes.” However, the Court rejected the claim that this should invalidate the TCPA as a whole, explaining that the 2015 amendment “did not suddenly and silently become so integral to the TCPA that the statute could not function without it.”

Facebook also urged the Ninth Circuit for a more restrained interpretation of ATDS to exclude smartphones and “reflexive” texts made in response to consumer action. The Court disagreed and followed the holding of Marks v. Crunch San Diego, LLC, that “an ATDS need not be able to use a random or sequential generator to store numbers—it suffices to merely have the capacity to ‘store numbers to be called’ and ‘to dial such numbers automatically.’” Acknowledging the D.C. Circuit’s admonition in ACA Int’l that a smartphone cannot be an ATDS, despite its ability to store numbers and automatically dial them, the Ninth Circuit did not attempt to reconcile Marks with ACA Int’l. Instead, it found that the allegations that Facebook maintains a database of phone numbers and has equipment that automatically creates and sends messages are sufficient.

It is unknown whether Facebook will challenge this decision. Though the full impact of these cases remains to be seen, they seem to signal a trend that Courts will not invalidate ATDS restrictions based on First Amendment grounds. Businesses should seek the advice of knowledgeable legal counsel before placing calls or sending texts that could fall under the umbrella of the TCPA.

* Kayley Lew contributed to this post.