Georgetown Law
Technology Review

The United States Supreme Court may take up two cases this term resolving critical questions about the constitutionality and scope of the Telephone Consumer Protection Act of 1991 (“TCPA”). The Court is currently reviewing briefs in support and opposition of certiorari from the Ninth Circuit’s decision in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019).  The case originated as a class action lawsuit brought by named plaintiff Noah Duguid against Facebook for violating provisions of the TCPA. Plaintiffs alleged that Facebook violated the TCPA when it used an automated system to send text messages to individuals who had not consented to receive the messages.

The TCPA restricts the types of autodialed calls and text messages that can be made to residential telephone lines and cellular phones. Passed in 1991, the TCPA was enacted to prevent the irritating phenomenon of spam telephone calls and faxes. Specifically, the Act restricts telemarketing calls using automatic telephone dialing systems and artificial or prerecorded messages. In Duguid, Facebook allegedly sent account security text messages through an automated system to individuals who did not consent to Facebook’s messages. Facebook alleged that these text messages were sent by mistake and were due to phone number turnover.

On appeal from the District Court’s dismissal, the Ninth Circuit made two important holdings, teeing up this case for potential Supreme Court review. First, the Ninth Circuit held that a provision in the TCPA exempting government debt collection calls from TCPA liability unconstitutionally distinguishes between permissible and impermissible calls based on the content of the calls. Despite finding the carveout unconstitutional, the Ninth Circuit held that the unconstitutional provision could be severed from the rest of the statute, rather than striking the TCPA in its entirety.

The Ninth Circuit also held that the TCPA liability extended to messages automatically sent to stored phone numbers. The text messages at issue in the District Court were allegedly the result of Facebook mistakenly sending messages to new owners of phone numbers previously given to Facebook. Facebook argued that expanding TCPA liability to include automated systems dialing stored numbers rather than randomly generated numbers was beyond the scope of the statute.  The Ninth Circuit, however, disagreed and ruled in favor of the plaintiff class. The Ninth Circuit applied its analysis from Marks v. Crunch San Diego, LLC and held that the complaint sufficiently alleges a TCPA violation because the statute not only covers randomly generated phone numbers, but also automated systems that dial stored numbers.

Not long after petitions for certiorari were filed in this case, the Court agreed to hear arguments in Barr v. American Association of Political Consultants. Like Duguid, this Fourth Circuit case addresses whether the government debt exception of the TCPA violates the First Amendment, and if so, whether the proper remedy is to sever the exemption from the remainder of the statute.

If the Supreme Court decides to take up the Duguid case, it may be consolidated with the Fourth Circuit Barr case. In resolving these cases, the Court may agree with the Fourth and Ninth Circuits and determine that the government debt collection exception to the TCPA is an impermissible, content-based speech restriction. If it does, the Court will then have to determine whether the proper remedy for the unconstitutional exemption is severing the unconstitutional provision from the statute or striking down the statute in its entirety. If the Court strikes down the TCPA, it would create significant uncertainty for regulated industry. Those who are potentially affected span from tech-giants like Facebook to political advocacy organizations and debt collectors that rely on auto-dialer technology to efficiently function.

Ultimately, even if the Court chooses not to hear the Duguid case, the eventual Barr decision will have a major impact on the development of TCPA jurisprudence and all industries affected by the statute.