law.com: SCOTUS Poised to Define Banned Technology in Facebook TCPA Case

SCOTUS Poised to Define Banned Technology in Facebook TCPA Case

By Alaina Lancaster, July 9, 2020

The U.S. Supreme Court is set to provide a crucial definition related to the Telephone Consumer Protection Act that could refine the scope of the law.

On Thursday, the nation’s high court granted Facebook Inc.’s petition for certiorari in a case that asks the justices to provide guidance on what exactly qualifies as an automatic telephone dialing system (ATDS). The law prohibits companies from using an ATDS to contact consumers without their consent, but courts’ definition of the device has differed.

Facebook’s lawyers at Latham & Watkins and Kirkland & Ellis called on the court to resolve a circuit split created, in part, by the U.S. Court of Appeals for the Ninth Circuit. Last June, the appeals court found that an ATDS does not need to use a random or sequential number generator, it just needs to store numbers and dial automatically. The Eleventh and Seventh circuits, however, ruled earlier this year that a random or sequential number generator is essential to proving the illegal use of an ATDS.

The social media giant’s attorneys say the Ninth Circuit’s ruling effectively expanded the classification of ATDS to include smartphones.

“It is hard to meaningfully address the constitutionality of a prohibition on ATDS calls without first knowing whether an ATDS refers to a small universe of rapidly obsolescing robocalling machines or virtually every modern smartphone,” they wrote in the October petition.

However, the court will not address the constitutional issues—whether the law’s ban on ATDS calls violates the First Amendment—raised in Facebook v. Duguid, according to the order.

In an email, Noah Duguid’s counsel, Sergei Lemberg of Lemberg Law in Wilton, Connecticut, said that Facebook will ask SCOTUS to “bless the use of robotexting technology” to send millions of texts to consumers, regardless of consent.

Duguid, who did not have a Facebook account, claimed he received security alerts from Facebook in violation of the TCPA.

“We don’t think the Supreme Court will go along [with] that reading of the statute,” Lemberg said. “As the Supreme Court said in Barr [v. American Association of Political Consultants], ‘Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.’ We expect the spirit of this decision to carry forward.”

Neither Facebook, Latham’s Andrew Clubok or Kirkland’s Paul Clement responded to a request for comment Thursday afternoon.

Original story: At law.com