Noah Duguid, individually and on behalf of himself and all others similarly situated, Plaintiff-Appellant,
Facebook, Inc., Defendant-Appellee, and United States of America, Intervenor-Appellee.
and Submitted March 11, 2019 San Francisco, California
from the United States District Court for the Northern
District of California, No. 3:15-cv-00985-JST Jon S. Tigar,
District Judge, Presiding
Lemberg (argued), Lemberg Law LLC, Wilton, Connecticut, for
B. Clubok (argued), Susan E. Engel, Samir Deger-Sen, Latham
& Watkins LLP, Washington, D.C.; Elizabeth L. Deeley,
Latham & Watkins LLP, San Francisco, California; for
Lindsey Powell (argued), Michael S. Raab, Mark B. Stern,
Attorneys, Appellate Staff, Civil Division; Alex G. Tse,
United States Attorney; Joseph H. Hunt, Assistant Attorney
General; United States Department of Justice, Washington,
D.C.; for Intervenor-Appellee.
Dvoretzky and Vivek Suri, Jones Day, Washington, D.C.; Steven
P. Lehotsky, United States Chamber Litigation Center,
Washington, D.C.; for Amicus Curiae Chamber of Commerce of
the United States of America.
Before: J. Clifford Wallace, Eugene E. Siler, [*] and M. Margaret
McKeown, Circuit Judges.
Consumer Protection Act
panel reversed the district court's dismissal for failure
to state a claim of an action under the Telephone Consumer
panel held that the plaintiff adequately alleged that
defendant Facebook, Inc., placed calls using an automated
telephone dialing system, defined as "equipment which
has the capacity-(1) to store numbers to be called or (2) to
produce numbers to be called, using a random or sequential
number generator-and to dial such numbers
the Fourth Circuit, the panel held that a 2015 amendment to
the Act, excepting calls "made solely to collect a debt
owed to or guaranteed by the United States," was
content-based and incompatible with the First Amendment. The
panel severed from the Act this "debt- collection
exception" as an unconstitutional restriction on speech.
McKEOWN, CIRCUIT JUDGE:
thirty years ago, in the age of fax machines and dial-up
internet, Congress took aim at unsolicited robocalls by
enacting the Telephone Consumer Protection Act of 1991
("TCPA"), 47 U.S.C. § 227. In the decades
since, the TCPA has weathered the digital revolution with few
amendments. With important exceptions, the TCPA forbids calls
placed using an automated telephone dialing system
("ATDS"), commonly referred to as an autodialer.
Duguid claims that Facebook used an ATDS to alert users, as a
security precaution, when their account was accessed from an
unrecognized device or browser. For unknown reasons, Duguid
received the messages despite not being a Facebook customer
or user and never consenting to such alerts. His repeated
attempts to terminate the alerts were unsuccessful.
challenges the adequacy of Duguid's TCPA allegations and,
alternatively, claims that the statute violates the First
Amendment. We conclude that Duguid's allegations are
sufficient to withstand Facebook's motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6).
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. Am. Ass'n of Political
Consultants, Inc. v. FCC, 923 F.3d 159 (4th Cir. 2019)
(hereinafter, AAPC). 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.
The Telephone Consumer Protection Act
was thought to be telemarketing's heyday, Congress
enacted the TCPA to "protect the privacy interests of
residential telephone subscribers by placing restrictions on
unsolicited, automated telephone calls." S. Rep. No.
102-178, at 1 (1991). With certain exceptions, the TCPA bans
calls (including text messages) placed using an ATDS. 47
U.S.C. § 227(b)(1); see Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009)
("[A] text message is a 'call' within the
its enactment, the definition of an ATDS 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." 47 U.S.C. § 227(a)(1). In contrast, the
scope of the prohibition section has evolved. In 2014, when
Duguid received messages from Facebook, the statute excepted
two types of calls: those "made for emergency
purposes" and those "made with the prior express
consent of the called party." Id. §
227(b)(1)(A) (2010). Effective November 2, 2015, Congress
added a third exception for calls "made solely to
collect a debt owed to or guaranteed by the United
States." Bipartisan Budget Act of 2015, Pub. L. No.
114-74, § 301(a)(1)(A), 129 Stat. 584, 588; 47 U.S.C.
§ 227(b)(1)(A)(iii). It is this "debt-collection
exception" that Facebook contends is unconstitutional.
court rulings during this appeal have shifted the TCPA
playing field. First, in ACA International v. Federal
Communications Commission, the D.C. Circuit overturned
aspects of several Federal Communications Commission
("FCC") rulings construing the ATDS definition. 885
F.3d 687 (D.C. Cir. 2018). Shortly thereafter, in Marks
v. Crunch San Diego, LLC, we construed ACA
International to wipe the definitional slate clean, so
we "beg[an] anew to consider the definition of ATDS
under the TCPA." 904 F.3d 1041, 1049-50 (9th Cir. 2018).
To clarify any ambiguity, we rearticulated the definition of
an ATDS: "equipment which has the capacity-(1) to store
numbers to be called or (2) to produce ...