Supreme Court Struggles to Apply Robocall Ban in Facebook Case


U.S. Supreme Court justices struggled to apply a decades-old federal ban on robocalls as they considered whether to allow a lawsuit accusing Facebook Inc. of repeatedly sending unwanted text messages.

The 80-minute argument indicated that several justices read the 1991 law as not applying to calls or texts that go to a wrong number, as Facebook says may have happened in its case. Other justices suggested they were simply frustrated by the task of making sense of an ambiguous statute enacted long before Facebook existed or mobile phones were in widespread use.

“Don’t you think it’s rather odd that we are applying a statute that’s almost anachronistic if not vestigial to a modern technology like Facebook and instant messaging, et cetera?” Justice Clarence Thomas asked. “Don’t you think that at some point, there’s at least a sense of futility?”

Facebook is appealing a lower court decision the social-media company says would put businesses at risk of massive damage awards for relatively small transgressions. Noah Duguid, the man suing Facebook, says the company’s interpretation of the law would unleash a torrent of robocalls.

Duguid says he received repeated texts from Facebook in 2014 notifying him of an attempted log-in, even though he didn’t have an account. Facebook says Duguid probably had a recycled phone number that had once been associated with an account. His lawsuit seeks class action status.

The case centers on the 1991 Telephone Consumer Protection Act, which allows penalties as high as $1,500 for every unwanted call or text. The ban applies to dialing systems that can “store or produce telephone numbers to be called, using a random or sequential number generator.”

‘Impossible Breadth’

The key question is whether the limiting phrase at the end applies only to systems that produce numbers, as Duguid contends, or also to those that simply store numbers, as Facebook argues.

Duguid’s lawyer, Bryan Garner, told the justices that Congress was responding to a deluge of complaints and intended to cover any use of stored numbers to make automatic calls. Garner said Facebook’s approach “would read the statute into oblivion.”

Facebook says the ban applies only to what are now rarely used dialing systems that generate random or sequential phone numbers. The company’s lawyer, Paul Clement, said Duguid’s approach is so broad it would cover calls made by mobile phones and create “a statute of impossible breadth.”

Facebook has broad corporate support in the case. Home Depot Inc., Quicken Loans LLC, CVS Corp.’s Aetna and United HealthCare Services Inc. all signed briefs backing Facebook, with some saying they had been subject to similar lawsuits. The Trump administration is also siding with Facebook.

Several justices suggested they were leaning toward Facebook’s interpretation. Justice Stephen Breyer told Clement he had “a pretty strong case on the consequences and purposes” of the law.

Justice Sonia Sotomayor said Duguid’s interpretation would put mobile-phone users at risk of being sued.

“If we rule your way, the logical consequence is that every cell phone owner would be subject to the harsh criminal and civil penalties of the TCPA,” she told Garner.

A separate provision of the anti-robocall law protects residential phones from calls that use artificial or recorded voices.

The case is Facebook v. Duguid, 19-511.

©2020 Bloomberg L.P.

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