In Duguid v. Facebook, the United States Court of Appeals for the Ninth Circuit, addressing a challenge from Facebook to a TCPA allegation against it, found in favor of Facebook’s argument against the constitutionality of the TCPA’s government-debt collection exception. The case involves a claim brought by Noah Duguid against Facebook for allegedly using an ATDS to send messages to customers about access to their account from an unfamiliar device or browser. Duguid said he received these security messages even though he is not a Facebook user and that Facebook failed to stop the alerts despite Duguid’s requests. In response, Facebook challenged as a threshold matter the constitutionality of the TCPA’s exception to the telemarketing rules for calls “made solely to collect a debt owed to or guaranteed by the United States” and the court concluded that the rule was in fact a content-based exception to the rule and the government’s justification does not withstand strict scrutiny. In line with recent decisions in the Fourth and Eighth Circuits, the Duguid court found that while the recently added debt collection exception is unconstitutional, that provision can be severed and the remainder of the law kept in intact. In the case, Facebook also sought to dismiss the claims as insufficient, asserting that the equipment it used to send messages is not an ATDS but the Ninth Circuit court disagreed, concluding that Duguid’s allegations were plausible. The court adopted an expansive interpretation of the ATDS definition to include a device if it could “store numbers to be called.”
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Ninth Circuit Finds TCPA Government Debt Exception to be Unconstitutional, Content-Based Regulation but, Severable from Remainder of Statute
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