Texts From Facebook Aren’t Illegal Robocalls, High Court Rules

The decision ends a class action led by a man who thought a 1991 law could help him solve a 2021 problem.

(AP Photo/Jenny Kane, File)

WASHINGTON (CN) — Ruling against a man who for months received messages about attempted Facebook log-ins from an unregistered device, the U.S. Supreme Court found Thursday that the social media giant’s account-specific security system is not the same thing as an illegal robocall that uses an automatic dialing system.

The opinion emphasizes that in 1991 when the Telephone Consumer Protection Act was adopted Congress in particular was worried abut the harm of robocallers tying up emergency lines at random, or every line at a single location. This is partly why TCPA-restricted systems by definition need to include autodialers.

Were the court now to expand the definition of an illegal TCPA-restricted device to encompass any equipment that can dial automatically and store numbers, Justice Sonia Sotomayor said it would “take a chainsaw to these nuanced problems when Congress meant to use a scalpel.”

The unanimous decision follows oral arguments in December where Justice Clarence Thomas was outspoken that the Telephone Consumer Protection Act, or TCPA, did not envision today’s tech nuisances.

“I think it’s a little odd when … we make great effort to interpret statute that really wasn’t intended for the universe in which we are operating now,” Thomas said. “And at what point do we simply say that?”

The TCPA was enacted at a time when cellphone contracts typically included per-call fee, in a bid to keep telemarketers from interrupting family meals and using prerecorded voice messages to randomly dial hospital rooms, prisons and emergency lines. Americans who brought successful lawsuits against their autodialers could recover up to $1,500 per violation or three times their actual damages.

Noah Duguid sought to cash in, saying he never even signed up Facebook but kept getting texts about supposed log-ins to his account, even after he asked Facebook to stop. In a footnote, Sotomayor notes the possibility that who ever had Duguid’s phone number before him had used it to sign up for Facebook.

A federal judge dismissed the suit, and Facebook appealed to the Supreme Court when the Ninth Circuit reversed, concluding that any device or system with the capability to randomly generate and store numbers and dial them automatically could qualify as a TCPA restricted system.

Sotomayor’s opinion largely focuses on what Congress says about autodialers in the statute, defining it as a device used “to store or produce telephone numbers to be called, using a random or sequential number generator.” The clause involving random number generators modifies both verbs that precede it, Sotomayor wrote, specifying how the devices store or produce telephone numbers. 

“Duguid’s interpretation of an autodialer would capture virtually all modern cell phones, which have the capacity to ‘store … telephone numbers to be called’ and ‘dial such numbers,’” she wrote. “The TCPA’s liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text messages responses.”

In a concurring opinion, Justice Samuel Alito — who turned 71 on Thursday — noted the heavy reliance the high court used on a canon of interpretation. In a treatise written by the late Justice Antonin Scalia and Bryan Garner — a Garner & Garner attorney representing Duguid — the “series-qualifier cannon” used by the court to examine TCPA language was not as rigid or inflexible as implied. 

“Canons of interpretation can help in figuring out the meaning of troublesome statutory language, but if they are treated like rigid rules, they can lead us astray,” Alito wrote. “When this court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage lower courts to regulate statutory interpretation to a series of if-then computations. No reasonable reader interprets text that way.” 

Kirkland & Ellis attorney Paul Clement, who represented Facebook, also did not return a request for comment.

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