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Facebook Autodialer SCOTUS Case Promises Robocall Resolution (1)

July 9, 2020, 7:52 PMUpdated: July 9, 2020, 8:56 PM

The Supreme Court decision Thursday to take up a Facebook Inc. case may lead to clarity for businesses that have wondered whether automated calls and texts they send consumers are legal.

Consumers also have something at stake. The outcome of the case may increase or lower the number of automated calls and texts they receive each day.

The question the court will resolve is what types of technologies the legal system should treat as automatic “autodialer” calling systems.

The 1991 Telephone Consumer Protection Act bans companies from using an autodialer to call or text consumers without advance permission. Circuit courts are split, however, over which technologies qualify as autodialers.

Resolving the split is important for businesses, who need to know whether the technology they choose puts them in violation of the law. Companies face fines of up to $1,500 per call or text if they violate the TCPA.

“The Supreme Court now has a clear path to determine whether the TCPA applies only to random-fired calls or to all calls dialed automatically,” Eric Troutman, a partner at Squire Patton Boggs who specializes on the TCPA, said in an email. “This will be the biggest ruling ever for the TCPA.”

Facebook’s petition challenges the U.S. Court of Appeals for the Ninth Circuit’s broad interpretation of the “autodialer” term. The Ninth Circuit ruled that Facebook used an autodialer to notify a consumer of a suspicious attempt to access his account.

Several other courts, including the U.S. Court of Appeals for the D.C. Circuit, have favored a narrower definition of autodialer. Businesses back the narrow definition, which gives them more technological options for sending messages.

“The courts of appeals are in irreconcilable conflict on an important and oft-litigated question that dictates whether the statute reaches specialized robocalling equipment or every modern smartphone,” Facebook said in a July 7 brief. “Billions of dollars in liability turn on the answer.”

Noah Duguid, the consumer who sued Facebook, in a July 8 brief said the court “should consider whether to resolve the disagreement among the circuits over” what counts as an autodialer.

The Supreme Court agreed to hear Facebook’s autodialer question four days after affirming the anti-robocall law’s constitutionality in its Monday decision in Barr v. AAPC.

The case is Facebook Inc. v. Duguid, U.S., No. 19-511, granted cert 7/9/20

(Updates with background on the case)

To contact the reporter on this story: Jon Reid in Washington at jreid@bloomberglaw.com

To contact the editor responsible for this story: John Hughes at jhughes@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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