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Facebook Asks Supreme Court to Decide Robocall Law’s Validity (1)

Oct. 17, 2019, 9:02 PMUpdated: Oct. 17, 2019, 9:53 PM

Facebook Inc. is asking the U.S. Supreme Court to decide the constitutionality of the Telephone Consumer Protection Act by reviewing a Ninth Circuit ruling that an exception to its telemarketing call restrictions violates the First Amendment.

The U.S. Court of Appeals for the Ninth Circuit nixed a TCPA provision that allows companies to use robocalls to collect government-owed debt, but it declined to invalidate the entire statute. Facebook had argued that the debt-collection language made the entire law unconstitutional because it distinguished speech based on content.

The company’s high court petition gives the justices a chance to weigh in on the decades-old law.

“The Ninth Circuit’s extraordinary decision finding an Act of Congress unconstitutional, but then denying the successful objecting party all relief by rewriting the statute to ban more speech, plainly merits this Court’s review,” Facebook wrote in its petition.

The case involves allegations by Noah Duguid that Facebook violated the TCPA by sending texts alerting him of suspicious attempts to access his account. The Ninth Circuit denied Facebook’s bid to toss the case because Duguid adequately showed Facebook used an autodialer to send the texts.

Facebook wants the justices to clarify whether the TCPA’s general prohibition on autodialed calls is an unconstitutional content-based restriction on free speech.

The social media giant also asked the justices to clarify the meaning of the term “autodialer” under the law. The Ninth Circuit said Facebook’s communications system could be an autodialer because Duguid alleged it automatically dials numbers stored in a database.

“The Ninth Circuit’s interpretation renders unlawful virtually every wrong number called from the contacts list of any smartphone in the United States,” Facebook said in its petition.

Lemberg & Associates LLC, counsel for Duguid, declined to comment. Latham & Watkins LLP is representing Facebook.

The case is Duguid v. Facebook Inc., 9th Cir., No. 17-15320, petition for review filed 10/17/19.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com