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April 01, 2021

Supreme Court Decides Facebook, Inc. v. Duguid

On April 1, 2021, the U.S. Supreme Court decided Facebook, Inc. v. Duguid, holding that to qualify as an “automatic telephone dialing system” (commonly referred to as an “autodialier”) under Section 227(a)(1)(A) of the Telephone Consumer Protection Act (TCPA), “a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.”

Facebook, Inc. maintains a social media platform with an optional security feature that sends users “login notification” text messages when an unknown device or browser attempts to access a user’s Facebook account. In 2014, Noah Duguid received several login-notification text messages from Facebook, alerting him that someone had attempted to access a Facebook account associated with his telephone number from an unknown browser. Duguid has never had a Facebook account, however, and never gave Facebook his telephone number.

Duguid brought a putative class action against Facebook, alleging that Facebook’s text messages violated the TCPA, which (with some exceptions not at issue in this case) makes it unlawful to call cellular telephone numbers using an autodialer, unless the call recipient has already given his or her express consent to receive such a call. Facebook disputed Duguid’s claim that it had used an autodialer to place the calls at issue. The TCPA defines an autodialer as a piece of equipment that has the capacity both (1) “to store or produce telephone numbers to be called, using a random or sequential number generator,” and (2) to dial those numbers. 47 U.S.C. § 227(a)(1).

The U.S. District Court for the Northern District of California agreed with Facebook and dismissed Duguid’s complaint with prejudice, holding that Duguid failed to allege that Facebook had sent text messages to numbers that were randomly or sequentially generated. The U.S. Court of Appeals for the Ninth Circuit reversed.

The Supreme Court reversed the Ninth Circuit’s judgment, holding that the clause “using a random or sequential number generator” in Section 227(a)(1)(A) of the TCPA modifies both of the two verbs that precede it — “store” and “produce.” Because Facebook’s notification system neither stores nor produces numbers “using a random or sequential number generator,” the Court held that it does not qualify as an automatic telephone dialing system under the TCPA.

The Court relied on several rules of grammar and canons of statutory construction in reaching that result. First, the “series-qualifier canon” provides that “a modifier at the end of a series of nouns or verbs applies to the entire series,” such that the modifying phrase “using a random or sequential number generator” qualifies both antecedent verbs, “store” and “produce.” Second, the modifier at issue immediately follows a concise, integrated clause. The Court determined it would be “odd” to apply the modifier to only a portion of the cohesive preceding clause. Third, the comma in Section 227(a)(1)(A) “further suggests that Congress intended the phrase ‘using a random or sequential number generator’ to apply equally to both preceding elements.” The Court rejected Duguid’s argument that this interpretation conflicts with the “rule of the last antecedent,” because the last antecedent preceding “using a random or sequential number generator” is not “produce” but rather “telephone numbers to be called.”

The Court determined that the statutory context supported its interpretation, as the TCPA targets “a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.” By contrast, the Court observed, Duguid’s interpretation would “capture virtually all modern cell phones,” resulting in the TCPA’s liability provisions affecting “ordinary cell phone owners in the course of commonplace usage.”

Justice Sotomayor authored the opinion of the Court, which was joined by Chief Justice Roberts, and Justices Thomas, Breyer, Kagan, Gorsuch, Kavanaugh, and Barrett joined. Justice Alito filed an opinion concurring in the judgment.

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