July 15, 2020

Last Thursday the U.S. Supreme Court granted certiorari in Facebook, Inc., Petitioner v. Noah Duguid No. 19-511. The issue that the court will be analyzing is what forms of technology are considered “banned technology” under the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA explicitly protects the public against the use of automated telephone equipment (i.e. “robocalls” and automatic text messages). However, due to ever-changing technology, there is some confusion in the lower courts as to what types of devices constitute a banned technology under the act.

This case was brought in the Ninth Circuit against Facebook by users of the social networking website who were experiencing unsolicited security text messages. The Ninth Circuit Court of appeals overturned the District Court’s grant of a motion to dismiss in favor of Facebook. Facebook is now appealing to the Supreme Court for clarification on the interpretation of the TCPA. Specifically, Facebook is challenging whether the technology that they used to send unsolicited security notification text messages should be considered automatic telephone dialing systems (ATDS).

Currently, there is a circuit split concerning the definition of ATDS. On the one hand, the Seventh and Eleventh Circuits narrowly interpret ATDS to specifically mean a device that sends messages or make calls randomly and devices that sequentially generate phone numbers. In contrast, the Second and Ninth Circuits interpret ATDS as all devices with the capacity to store and automatically dial numbers. This forthcoming SCOTUS decision is expected to provide much-needed clarity by creating a uniform definition of ATDS so that businesses and plaintiffs alike can more readily understand the implications of this 30-year-old statute in an age of everchanging technology.

The decision to grant certiorari comes just after the Court released its decision in Barr v. American Association of Political Consultants No. 19-631. In that case, the Supreme Court found that an exception to the TCPA that allowed ATDS to be used to collect debts owed to or guaranteed by the federal government was unconstitutional. The opinion noted the annoyance that robocalls cause and the public’s disdain for them.


If you or someone you know are a victim of unsolicited robocalls or automatic text messages, please contact us today for a free consultation. We at Shub Law specialize in consumer protection lawsuits. Let’s get justice! Contact us now via email at or give us a call at 856-772-7200.

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