Metropolitan News-Enterprise


Friday, June 14, 2019


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Ninth Circuit Revives Putative Class Action Against Facebook

Opinion Says Plaintiff Adequately Pled Violations of Telephone Consumer Protection Act; Declares Portion of that Act, Allowing Robocall Dunning by Federal Government, Invalid


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday, in the course of reinstating a putative class action against Facebook for making robocalls, severed from the Telephone Consumer Protection Act a portion exempting from the ban on robocalls those made by the United States government to collect debts.

The putative class action was brought by Noah Duguid who received repeated robocall text messages warning that his account had been accessed by an unrecognized browser. Duguid did not have a Facebook account.

Facebook continued to send the messages notwithstanding Duguid’s protests.

Government Exception

Addressing the exemption in the Telephone Consumer Protection Act (“TCPA”) for government dunning, Circuit Judge M. Margaret McKeown, agreed with Duquid that the exception afforded the government is invalid but disagreed that this requires holding the entire act unconstitutional. She wrote:

“As to the constitutional question, we join the Fourth Circuit and hold that a 2015 amendment to the TCPA, which excepts calls ‘made solely to collect a debt owed to or guaranteed by the United States,’ is content-based and incompatible with the First Amendment….But rather than toss out the entire TCPA—a longstanding and otherwise constitutional guardian of consumer privacy—we sever the newly appended ‘debt-collection exception’ as an unconstitutional restriction on speech.”

McKeown said Duguid has standing to raise the constitutional issue notwithstanding that the 2014 conduct of which he complained predated the amendment, explaining:

“The class allegations and request for injunctive relief vest Facebook with a sufficient personal stake in the post-amendment TCPA to challenge its constitutionality.”

Two Classes

Duguid sued on behalf of two putative classes: those who received messages from Facebook who had not provided their cell phone number and those who told Facebook to cease contacting them and who received at least one message after making that demand.

District Court Judge Jon S. Tigar of the Northern District of California on Feb. 16, 2017, dismissed with prejudice the action brought by Duguid, reasoning that he had not adequately pled that Facebook utilizes an “automatic telephone dialing system” (“ATDS”) so as to bring it under the TCPA.

That act provides that an ATDS must have the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.”

McKeown said:

“Duguid’s nonconclusory allegations plausibly suggest that Facebook s equipment falls within this definition. He alleges that Facebook maintains a database of phone numbers and explains how Facebook programs its equipment to automatically generate messages to those stored numbers. The amended complaint explains in detail how Facebook automates even the aspects of the messages that appear personalized.”

Those factual allegations, the jurist declared, adequately plead the use by Facebook of an ATDS.

Purpose of TCPA

Facebook took the position that Congress did not intend the TCPA to prevent potentially useful warnings. Its lawyer, Andrew B. Clubok of the District of Columbia office of Latham & Watkins, said at oral argument  in Pasadena on March 11 that proving an alert as to possible hacking is “nothing like the telemarketing that Congress originally sought to stop.”

McKeown’s opinion responds:

“Our reading supports the TCPAs animating purpose—protecting privacy by restricting unsolicited, automated telephone calls….The messages Duguid received were automated, unsolicited, and unwanted.”

She rejected Facebook’s “strained reading” of case law and the act, itself.

Emergency Exception

Facebook argued that an exception for “emergency calls” applies to its hacking alerts. Skeptical of that stance, McKeown asked rhetorically at oral argument:

“Could I call 911 if someone is hacking my computer?”

In yesterday’s opinion, McKeown pointed out that the Federal Communications Commission, in a regulation, has construed the emergency exception to include “calls made necessary in any situation affecting the health and safety of consumers.” She commented:

“But Duguid alleges that he is not a Facebook customer and has advised Facebook of that fact repeatedly and through various means of communication. Accepting these allegations as true, Duguid did not have a Facebook account, so his account could not have faced a security issue, and Facebooks messages fall outside even the broad construction the FCC has afforded the emergency exception.”

The case is Duguid v. Facebook Inc., 17-15320.


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