Facebook Wins Supreme Court Case On Texting

Written by Carmine Sabia

OPINION: This article contains commentary which reflects the author's opinion




Social media giant Facebook has just won a major case with far reaching implications by a unanimous decision in the Supreme Court.

The 9 – 0 decision united conservative and liberal justices in a case that could have implications on how telemarketing and text marketing is done in the future, SCOTUSBlog reported.

On Thursday, the Supreme Court unanimously sided with Facebook in a lawsuit over unsolicited text messages the social-media giant sent to a cellphone number in the company’s database. In an opinion authored by Justice Sonia Sotomayor in Facebook v. Duguid, the court adopted a narrow reading of a key definition in the federal ban on robocalls and robotexts to cellphones. It held that to qualify as an “automatic telephone dialing system” under the Telephone Consumer Protection Act, a device must have the capacity either to store, or to produce, a telephone number using a random or sequential number generator — a type of obsolescent marketing technology.

The decision is likely to have major implications for the future of telemarketing. Of most import, it means that the act does not ban the use of now-dominant predictive dialing technology that can call or text targeted customers, including technology that relies on the massive amounts of data now collected on American consumers, so long as an artificial or pre-recorded voice is not used. In so holding, the justices made clear that it’s the job of Congress, not the court, to update statutes in the face of technological change.

Enacted in 1991, the TCPA responded to widespread consumer outrage over abusive telemarketing calls. The part of the statute at issue in Duguid bans “using any automatic telephone dialing system or an artificial or prerecorded voice” to call or text cellphones, as well as emergency telephone lines, hospital patient rooms, pagers, and phones that charge for incoming calls, among others. The Federal Communications Commission, state attorneys general and private parties are authorized to sue those who don’t comply with the law; the penalty is up to $1,500 per call.

Since the passage of the TCPA, despite dramatic changes in telemarketing technology, the definition of automatic telephone dialing system has remained the same: “equipment which has the capacity — (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

Noah Duguid sued the company after he started receiving login messages in 2014 and was not able to stop them even though he had never created an account.

He said he emailed and texted the company to stop the messages but claims they continued even after it said “Facebook texts are now off.”

Facebook asked for the case to be dismissed based on Congress’ definition of auto dialers as “store or produce telephone numbers to be called, using a random or sequential number generator.”

The Telephone Consumer Protection Act of 1991 defines an auto dialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

“As several leading treatises explain,” Justice Sotomayor said, a “qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.″

The Justice noted a hypothetical situation where a teacher would announce that students “must not complete or check any homework to be turned in for a grade, using online homework-help websites.”

“It would be strange to read that rule as prohibiting students from completing homework altogether, with or without online support,” she said.

“Under conventional rules of grammar, ‘[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the end of the list ’normally applies to the entire series,” she said, quoting the book, “Reading Law: The Interpretation of Legal Texts.