Facebook used autodialing equipment to contact consumers’ cell phones without consent. One consumer who had not consented to receive such messages brought a class action against Facebook for violating the Telephone Consumer Protection Act (TCPA), which prohibits the use of autodialers to call cell phones without the subscriber’s consent. Facebook moved to dismiss the case on two grounds: It argued that the TCPA’s prohibition, which allows autodialed calls to cell phones for the purpose of collecting a debt owed to the government, violates the First Amendment by distinguishing between permissible and impermissible calls based on the content of speech. It also argued that the equipment it used did not meet the definition of an autodialier under the statute. The district court granted the motion on the latter ground. On appeal, the Ninth Circuit reversed, holding that the complaint adequately alleged use of an autodialer. The court of appeals also held that the TCPA violates the First Amendment by distinguishing between permissible and impermissible calls based on the content of speech, but it cured the violation by severing the content-based provision.
Facebook then filed a cert. petition challenging both the Ninth Circuit’s ruling that the government-debt-collection exception is severable from the TCPA and its holding that the statutory definition of an automated telephone dialing system does not require the capability of generating numbers randomly or sequentially. Public Citizen Litigation Group, serving as co-counsel before the Supreme Court, assisted with the brief in opposition to the petition. The Supreme Court held Facebook’s petition pending its decision in Barr v. American Association of Political Consultants, which presented the First Amendment/severability issue advanced by Facebook. Meanwhile, a conflict among the courts of appeals developed over the automated telephone dialing system issue. The Supreme Court’s ruling in Barr disposed of Facebook’s First Amendment challenge, but in light of the conflict over the autodialer issue, the Court granted certiorari on July 9, 2020, to resolve that issue. Briefing and argument will take place in the fall of 2020, and we are acting as co-counsel for Mr. Duguid.