`No. ______
`In the
`Supreme Court of the United States
`________________
`FACEBOOK, INC.,
`
`Petitioner,
`
`v.
`NOAH DUGUID, individually and on behalf of
`himself and all others similarly situated,
`Respondent,
`
`and
`UNITED STATES OF AMERICA,
`Respondent-Intervenor
`________________
`On Petition for Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`________________
`PETITION FOR WRIT OF CERTIORARI
`________________
`ANDREW B. CLUBOK
`PAUL D. CLEMENT
`ROMAN MARTINEZ
` Counsel of Record
`SUSAN E. ENGEL
`DEVIN S. ANDERSON
`SAMIR DEGER-SEN
`KASDIN M. MITCHELL
`GREGORY B.
`LAUREN N. BEEBE
` IN DEN BERKEN
`KIRKLAND & ELLIS LLP
`LATHAM
`1301 Pennsylvania Ave., NW
` & WATKINS LLP
`Washington, DC 20004
`555 Eleventh Street, NW
`(202) 389-5000
` Suite 1000
`paul.clement@kirkland.com
`Washington, DC 20004
`Counsel for Petitioner
`
`October 17, 2019
`
`
`
`QUESTIONS PRESENTED
`Congress enacted the Telephone Consumer
`Protection Act of 1991 (“TCPA”) to prohibit calls made
`to a cell phone without consent using an “automatic
`telephone dialing system” (“ATDS”). That prohibition
`exempts calls made “to collect a debt owed to or
`guaranteed by the United States” or “made for
`emergency purposes.” 47 U.S.C. §227(b)(1)(A)(iii).
`Here, Petitioner was sued
`for violating
`this
`prohibition and defended on the grounds, inter alia,
`that the prohibition unconstitutionally discriminated
`on the basis of content and that the text messages at
`issue here did not involve an ATDS. The Ninth Circuit
`agreed that the TCPA was unconstitutional, but
`denied Petitioner any
`relief by
`taking
`the
`extraordinary step of rewriting the TCPA to prohibit
`more speech by eliminating the government-debt-
`collection exception. To make matters worse, the
`Ninth Circuit adopted a counter-textual and
`expansive definition of an ATDS that encompasses
`any device that can store and automatically dial
`telephone numbers—even if that device cannot store
`or produce them “using a random or sequential
`number generator,” as the statutory definition
`requires, id. §227(b)(1)(A). That holding—which
`conflicts with the Third and D.C. Circuits—sweeps
`into the TCPA’s prohibition almost any call or text
`made from any modern smartphone.
`The questions presented are:
`1. Whether the TCPA’s prohibition on calls made
`using an ATDS is an unconstitutional restriction of
`speech, and if so whether the proper remedy is to
`broaden the prohibition to abridge more speech.
`
`
`
`ii
`
`2. Whether the definition of ATDS in the TCPA
`encompasses any device that can “store” and
`“automatically dial” telephone numbers, even if the
`device does not “us[e] a random or sequential number
`generator.”
`
`
`
`
`iii
`
`PARTIES TO THE PROCEEDING
`Facebook, Inc.
`is Petitioner here and was
`Defendant-Appellee below.
`Noah Duguid, individually and on behalf of
`himself and all others similarly situated,
`is
`Respondent here and was Plaintiff-Appellant below.
`The United States of America is Respondent-
`Intervenor here and was Intervenor-Appellee below.
`
`
`
`iv
`
`CORPORATE DISCLOSURE STATEMENT
`Facebook, Inc. is a publicly traded company and
`has no parent corporation. No publicly held company
`owns 10% or more of its stock.
`
`
`
`
`
`v
`
`STATEMENT OF RELATED PROCEEDINGS
`Duguid v. Facebook, Inc., No. 17-15320 (9th Cir.)
`(opinion issued and judgment entered June 13, 2019;
`petition for rehearing denied Aug. 22, 2019; mandate
`issued Sept. 12, 2019).
`Duguid v. Facebook, Inc., No. 15-cv-00985-JST
`(N.D. Cal.) (order granting motion to dismiss with
`prejudice issued Feb. 16, 2017; order denying motion
`to set aside judgment issued July 24, 2017).
`There are no additional proceedings in any court
`that are directly related to this case.
`
`
`
`
`
`vi
`
`TABLE OF CONTENTS
`QUESTIONS PRESENTED........................................ i
`PARTIES TO THE PROCEEDING .......................... iii
`CORPORATE DISCLOSURE STATEMENT ........... iv
`STATEMENT OF RELATED PROCEEDINGS ........ v
`PETITION FOR WRIT OF CERTIORARI ................ 1
`OPINIONS BELOW ................................................... 3
`JURISDICTION ......................................................... 4
`CONSTITUTIONAL
`AND
`STATUTORY
`PROVISIONS INVOLVED ...................................... 4
`STATEMENT OF THE CASE ................................... 4
`A. The Telephone Consumer Protection Act .... 4
`B. Factual Background and Proceedings
`Below ............................................................. 7
`REASONS FOR GRANTING THE PETITION ....... 12
`I. The Court Should Grant Certiorari To Bring
`The Ninth Circuit In Line With This Court’s
`First Amendment Jurisprudence ...................... 14
`II. The Court Should Grant Certiorari To
`Provide A Workable, Uniform Interpretation
`Of The TCPA...................................................... 23
`A. The Statutory Text Forecloses the Ninth
`Circuit’s Expansive Interpretation of an
`ATDS ........................................................... 23
`B. The Ninth Circuit’s
`Interpretation
`Creates a Circuit Split ............................... 29
`III. The Questions Presented Are Exceptionally
`Important And This Case Is An Ideal Vehicle . 34
`CONCLUSION ......................................................... 37
`
`
`
`vii
`
`APPENDIX
`Appendix A
`Opinion, United States Court of Appeals for
`the Ninth Circuit, Duguid v. Facebook, Inc.,
`No. 17-15320 (Mar. 11, 2019) ...................... App-1
`Appendix B
`Order, United States Court of Appeals for the
`Ninth Circuit, Duguid v. Facebook, Inc., No.
`17-15320 (Aug. 22, 2019) ........................... App-21
`Appendix C
`Order Granting Motion to Dismiss, United
`States District Court for the Northern
`District of California, Duguid v. Facebook,
`Inc., No.
`15-cv-00985-JST
`(Mar.
`24,
`2016) ........................................................... App-23
`Appendix D
`Order Granting Motion to Dismiss with
`Prejudice, United States District Court for
`the Northern District of California, Duguid v.
`Facebook, Inc., No. 15-cv-00985-JST (Feb. 16,
`2017) ........................................................... App-39
`Appendix E
`Relevant Statutory Provision .................... App-53
`47 U.S.C. § 227 .................................... App-53
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES
`
`Cases
`ACA Int’l v. FCC,
`885 F.3d 687 (D.C. Cir. 2018) ........................ passim
`Adams v. Ocwen Loan Servicing, LLC,
`366 F. Supp. 3d 1350 (S.D. Fla. 2018) .................. 33
`Adams v. Safe Home Sec. Inc.,
`2019 WL 3428776 (N.D. Tex. July 30, 2019) ........ 33
`Allan v. Pa. Higher Educ. Assistance Agency,
`2019 WL 3890214
`(W.D. Mich. Aug. 19, 2019) .................................... 33
`Am. Ass’n of Political Consultants, Inc.
`v. FCC,
`923 F.3d 159 (4th Cir. 2019) .................................. 20
`Ammons v. Ally Fin., Inc.,
`326 F. Supp. 3d 578 (M.D. Tenn. 2018) ................ 33
`Ark. Writers’ Project, Inc. v. Ragland,
`481 U.S. 221 (1987) ................................................ 19
`Asher v. Quicken Loans, Inc.,
`2019 WL 131854 (D. Utah Jan. 8, 2019) ............... 33
`Beckerman v. City of Tupelo,
`664 F.2d 502 (5th Cir. Unit A 1981) ..................... 19
`Brown v. Entm’t Merchs. Ass’n,
`564 U.S. 786 (2011) ................................................ 19
`Campbell-Ewald Co. v. Gomez,
`136 S. Ct. 663 (2016) ................................................ 5
`Cent. Bank of Denver, N.A.
`v. First Interstate Bank of Denver, N.A.,
`511 U.S. 164 (1994) ................................................ 28
`
`
`
`ix
`
`City of Cincinnati v. Discovery Network, Inc.,
`507 U.S. 410 (1993) ................................................ 19
`City of Ladue v. Gilleo,
`512 U.S. 43 (1994) .................................................. 19
`Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund,
`138 S. Ct. 1061 (2018) ............................................ 24
`Denova v. Ocwen Loan Servicing,
`2019 WL 4635552
`(M.D. Fla. Sept. 24, 2019) ...................................... 32
`Dimmitt v. City of Clearwater,
`985 F.2d 1565 (11th Cir. 1993) .............................. 19
`Dominguez ex rel. Himself v. Yahoo, Inc.,
`894 F.3d 116 (3d Cir. 2018) ............................. 29, 30
`Dominguez v. Yahoo, Inc.,
`629 F. App’x 369 (3d Cir. 2015) ............................... 5
`Duran v. La Boom Disco, Inc.,
`369 F. Supp. 3d 476 (E.D.N.Y. 2019) .................... 33
`Espejo v. Santander Consumer USA, Inc.,
`2019 WL 2450492 (N.D. Ill. June 12, 2019).......... 33
`Evans v. Pa. Higher Educ. Assistance Agency,
`2018 WL 3954761 (N.D. Ga. June 12, 2018) ........ 33
`Gadelhak v. AT&T Servs., Inc.,
`2019 WL 1429346 (N.D. Ill. Mar. 29, 2019) .......... 33
`Gerrard v. Acara Sols. Inc.,
`2019 WL 2647758
`(W.D.N.Y. June 27, 2019) ...................................... 33
`Glasser v. Hilton Grand Vacations Co., LLC.,
`341 F. Supp. 3d 1305 (M.D. Fla. 2018) ................. 33
`Gonzalez v. HOSOPO Corp.,
`371 F. Supp. 3d 26 (D. Mass. 2019) ...................... 33
`
`
`
`x
`
`Greater New Orleans Broad. Ass’n
`v. United States,
`527 U.S. 173 (1999) ................................................ 19
`Gresham v. Swanson,
`866 F.3d 853 (8th Cir. 2017) .................................. 21
`Hartford Underwriters Ins. Co.
`v. Union Planters Bank, N. A.,
`530 U.S. 1 (2000) .................................................... 24
`Heard v. Nationstar Mortg. LLC,
`2018 WL 4028116 (N.D. Ala. Aug. 23, 2018) ........ 33
`Honeycutt v. United States,
`137 S. Ct. 1626 (2017) ............................................ 24
`Jiminez v. Credit One Bank, N.A.,
`377 F. Supp. 3d 324 (S.D.N.Y. 2019) .................... 33
`Keyes v. Ocwen Loan Servicing, LLC,
`335 F. Supp. 3d 951 (E.D. Mich. 2018) ................. 33
`Kloth-Zanard v. Bank of Am.,
`2019 WL 1922070 (D. Conn. Apr. 30, 2019) ......... 33
`Krakauer v. Dish Network, L.L.C.,
`925 F.3d 643 (4th Cir. 2019) .................................... 7
`Lamie v. U.S. Trustee,
`540 U.S. 526 (2004) .......................................... 23, 24
`Lord v. Kisling, Nestico & Redick, LLC,
`2018 WL 3391941
`(N.D. Ohio July 12, 2018) ...................................... 33
`Maes v. Charter Commc’n,
`345 F. Supp. 3d 1064 (W.D. Wis. 2018) ................ 33
`Marks v. Crunch San Diego, LLC,
`904 F.3d 1041 (9th Cir. 2018) ........................ passim
`
`
`
`xi
`
`Matthews v. Town of Needham,
`764 F.2d 58 (1st Cir. 1985) .................................... 19
`McCullen v. Coakley,
`573 U.S. 464 (2014) ................................................ 15
`Might v. Capital One Bank (USA), N.A.,
`2019 WL 544955 (W.D. Okla. Feb. 11, 2019) ........ 33
`Mims v. Arrow Fin. Servs., LLC,
`565 U.S. 368 (2012) .................................................. 4
`Minneapolis Star & Tribune Co.
`v. Minn. Comm’r of Revenue,
`460 U.S. 575 (1983) ................................................ 19
`Morgan v. On Deck Capital, Inc.,
`2019 WL 4093754 (W.D. Va. Aug. 29, 2019) ......... 33
`Nat’l Bank of Bos. v. Bellotti,
`435 U.S. 765 (1978) ................................................ 19
`Patriotic Veterans, Inc. v. Zoeller,
`845 F.3d 303 (7th Cir. 2017) .................................. 21
`Perrong v. Liberty Power Corp.,
`2019 WL 4751936 (D. Del. Sept. 30, 2019) ........... 21
`Rappa v. New Castle Cty.,
`18 F.3d 1043 (3rd Cir. 1994) ........................... 19, 20
`Reed v. Town of Gilbert,
`135 S. Ct. 2218 (2015) ................................ 14, 15, 18
`Roark v. Credit One Bank, N.A.,
`2018 WL 5921652 (D. Minn. Nov. 13, 2018) ... 32, 33
`Rubin v. Coors Brewing Co.,
`514 U.S. 476 (1995) ................................................ 19
`Smith v. Premier Dermatology,
`2019 WL 4261245 (N.D. Ill. Sept. 9, 2019) ........... 32
`
`
`
`xii
`
`Snow v. Gen. Elec. Co.,
`2019 WL 2500407 (E.D.N.C. June 14, 2019) .. 30, 33
`Sorrell v. IMS Health Inc.,
`564 U.S. 552 (2011) ................................................ 19
`Thompson-Harbach v. USAA Fed. Sav. Bank,
`359 F. Supp. 3d 606 (N.D. Iowa 2019) .................. 33
`Willson v. City of Bel-Nor,
`924 F.3d 995 (8th Cir. 2019) .................................. 19
`Constitutional Provision
`U.S. Const. amend. I ........................................ passim
`Statutes
`47 U.S.C. §151 et seq. ................................................. 4
`47 U.S.C. §227(a)(1) ........................................ 5, 24, 25
`47 U.S.C. §227(b) ...................................................... 15
`47 U.S.C. §227(b)(1)(A) ................................... 1, 4, 5, 6
`47 U.S.C. §227(b)(3) .................................................... 6
`Bipartisan Budget Act of 2015,
`Pub. L. No. 114-74, 129 Stat. 584 ........................... 6
`Regulation
`47 C.F.R. §64.1200(f)(4) .............................................. 6
`Other Authorities
`4 Ian Ballon, E-Commerce & Internet Law
`(2019 update) ................................................... 30, 32
`Consumer Protection: Ninth Circuit Creates
`Circuit Split on Autodialer Rule Under the
`TCPA, 31 Bus. Torts Rep. 37 (Dec. 2018) ............. 30
`Declaratory Ruling and Order, Rules and
`Regulations Implementing the TCPA Act of
`1991, 30 FCC Rcd. 7,961 (2015) ............................ 31
`
`
`
`xiii
`
`FCC, Public Notice: Consumer and
`Governmental Affairs Bureau Seeks
`Further Comment on Interpretation of the
`TCPA in light of the Ninth Circuit’s Marks
`v. Crunch San Diego, LLC Decision (Oct. 3,
`2018), https://bit.ly/2Qso4KG ................................ 32
`H.R. Rep. No. 102-317 (1991) ..................................... 5
`Blaine C. Kimrey & Bryan K. Clark, What’s
`That Crunch-ing sound? Reason Being
`Destroyed in the Ninth Circuit, The Nat’l L.
`Rev. (Sept. 27, 2018), https://bit.ly/2lvHtAp ......... 32
`Stephen P. Mandell et al., Recent
`Developments in Media, Privacy,
`Defamation, and Advertising Law,
`54 Tort Trial & Ins. Prac. L.J. 651
`(Spring 2019) .......................................................... 30
`Noble Systems Corp., Comments on FCC’s
`Request for Comments on the Interpretation
`of The TCPA in Light of Marks v. Crunch
`San Diego (Oct. 16, 2018),
`https://bit.ly/2n32vHd ............................................ 27
`Number of smartphone users in the United
`States 2010 to 2023, Statista,
`https://bit.ly/2gbXF5d
`(last visited Oct. 17, 2019) ..................................... 26
`Marissa A. Potts, “Hello, It’s Me [Please Don’t
`Sue Me!]”: Examining the FCC’s Overbroad
`Calling Regulations Under the TCPA,
`82 Brook. L. Rev. 281 (2016) ................................... 7
`S. Rep. No. 102-178 (1991) ......................................... 5
`
`
`
`xiv
`
`Antonin Scalia & Bryan A. Garner, Reading
`Law: The Interpretation of Legal Texts
`(2012) ...................................................................... 24
`Second Notice of Inquiry, Advanced Methods
`to Target and Eliminate Unlawful
`Robocalls, 32 FCC Rcd. 6,007 (2017) ...................... 6
`WebRecon Stats for Dec 2018,
`WebRecon LLC, https://bit.ly/2mellej
`(last visited Oct. 17, 2019) ..................................... 35
`
`
`
`
`
`
`PETITION FOR WRIT OF CERTIORARI
`This case presents two questions of critical and
`far-reaching
`importance relating
`to
`the First
`Amendment and scope of the Telephone Consumer
`Protection Act of 1991 (“TCPA”).
`The first question concerns the constitutionality
`of this important and frequently litigated Act of
`Congress and strikes at the core of how courts should
`analyze and remedy speech restrictions under the
`First Amendment. Facebook was haled into court
`based on allegations that it violated the TCPA’s
`prohibition on calls made without consent from an
`automatic telephone dialing system (“ATDS”) by
`sending security-related text messages. Facebook
`raised two closely related constitutional defenses
`based on the First Amendment, arguing both that the
`TCPA’s prohibition was impermissibly content-based
`because its reach turned on the content of the
`underlying calls and that it was hopelessly overbroad
`if the definition of an ATDS reached every
`smartphone. The Ninth Circuit accepted the first
`argument and found the TCPA unconstitutional based
`on Facebook’s arguments. But the Ninth Circuit then
`took the extraordinary step of denying Facebook any
`relief from the prohibition it was alleged to have
`violated and which
`it successfully argued was
`unconstitutional. Rather than simply invalidating the
`TCPA’s unconstitutional prohibition, the Ninth
`Circuit undertook to rewrite the prohibition to abridge
`even more speech under the guise of “severing” the
`statutory exception
`for calls made
`to collect
`government debt, 47 U.S.C. §227(b)(1)(A)(iii).
`
`
`
`2
`
`That holding turns principles of the First
`Amendment, severability, and standing on their
`heads. Courts have no license to rewrite laws to
`abridge more speech, and severability principles,
`properly understood, have no application here.
`Facebook’s constitutional challenge was not to the
`TCPA’s government-debt exception, which neither
`applied to Facebook nor abridged any speech. Instead,
`Facebook was sued for violating—and challenged—
`the TCPA’s prohibition on making calls with an ATDS,
`which decidedly does abridge speech.
` Having
`succeeded in its challenge to that prohibition, the
`proper course was for the court to invalidate the
`prohibition and then see whether the rest of the
`statute could stand. Nothing in “severability” or First
`Amendment principles empowered the Ninth Circuit
`to rewrite the prohibition to abridge more speech by
`excising a government-debt exception. The Ninth
`Circuit’s extraordinary decision finding an Act of
`Congress unconstitutional, but then denying the
`successful objecting party all relief by rewriting the
`statute to ban more speech, plainly merits this Court’s
`review.
`The second and closely related question concerns
`the scope of the TCPA’s definition of an ATDS. If the
`TCPA’s statutory prohibition on calls made using an
`ATDS really covers every smartphone in America, as
`the Ninth Circuit has held, then content-based
`discrimination is the least of the TCPA’s First
`Amendment problems. The Ninth Circuit’s statutory
`interpretation renders the statute wildly overbroad,
`extending the TCPA’s up-to-$1,500-per-call penalty to
`calls and texts millions of Americans make with their
`smartphones every day. Fortunately, the Ninth
`
`
`
`3
`
`Circuit’s nearly limitless view of what constitutes an
`ATDS is wrong as a matter of both basic statutory
`construction and constitutional avoidance principles.
`Moreover, the Ninth Circuit’s view is in acknowledged
`conflict with the holding of the Third Circuit and
`reaches a result that the D.C. Circuit labeled
`“unreasonable,” “impermissible,” and “untenable.”
`ACA Int’l v. FCC, 885 F.3d 687, 697-98 (D.C. Cir.
`2018). This Court should grant certiorari to resolve
`that conflict and to determine the scope and
`constitutionality of
`the TCPA’s much-litigated
`prohibition on ATDS calls.
`The Ninth Circuit’s decision is profoundly wrong
`and profoundly important. It invalidated an Act of
`Congress under the First Amendment, but then
`contravened principle and precedent by denying the
`challenging party any relief and rewriting the statute
`to prohibit more speech. And the court misread a
`federal statute that Congress passed to target now-
`largely-obsolete telemarketing equipment to prohibit
`a wide range of speech in today’s economy. Each
`question presented independently warrants certiorari,
`and both together compel it. The Court should grant
`review
`to ensure correct application of First
`Amendment principles and restore the TCPA to its
`intended scope.
`
`OPINIONS BELOW
`The Ninth Circuit’s opinion is reported at 926
`F.3d 1146 and reproduced at App.1-20, and its order
`denying the government’s petition for panel rehearing
`and rehearing en banc is unreported and reproduced
`at App.21-22. The district court’s orders granting
`Facebook’s motions to dismiss are unreported but
`
`
`
`4
`
`available at 2017 WL 635117 and 2016 WL 1169365
`and reproduced at App.23-52.
`JURISDICTION
`The Ninth Circuit issued its opinion on June 13,
`2019. That judgment became final on August 22,
`2019, when the court denied the government’s petition
`for panel rehearing and rehearing en banc. This Court
`has jurisdiction under 28 U.S.C. §1254(1).
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`The First Amendment provides, in relevant part:
`“Congress shall make no law … abridging the freedom
`of speech, or of the press.” U.S. Const. amend. I.
`The relevant provisions of the TCPA, 47 U.S.C.
`§277, are reproduced at App.53-81.
`STATEMENT OF THE CASE
`A. The Telephone Consumer Protection Act
`1. In 1991, “[a]lmost thirty years ago, in the age of
`fax machines and dial-up internet” and long before the
`first smartphones, Congress “took aim at unsolicited
`robocalls” by enacting the TCPA. App.1-2; Mims v.
`Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012)
`(noting that Congress passed the TCPA in response to
`“[v]oluminous consumer complaints about abuses of
`telephone technology”). The TCPA supplemented the
`Federal Communications Act of 1934, 47 U.S.C. §151
`et seq., and among other things, makes it unlawful for
`a person to place calls without prior consent to cellular
`and certain specialized telephone lines using a device
`called an “automatic telephone dialing system.” Id.
`§227(b)(1)(A).
`
`
`
`5
`
`The statute defines an ATDS as “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.” Id. §227(a)(1). Congress used the phrase
`“random or sequential number generator” to address
`particular problems posed by
`the autodialing
`technology prevalent when the TCPA was enacted in
`1991. At that time, “telemarketers [were using]
`autodialing equipment that either called numbers in
`large sequential blocks or dialed random 10-digit
`strings.” Dominguez v. Yahoo, Inc. (Dominguez I), 629
`F. App’x 369, 372 (3d Cir. 2015). Random dialing
`meant that callers could reach and “tie up” unlisted
`and specialized numbers, crowding the phone lines
`and preventing those numbers from making or
`receiving any other calls. See S. Rep. No. 102-178, at
`2 (1991), as reprinted in 1991 U.S.C.C.A.N. 1968,
`1969. Sequential dialing also allowed callers to reach
`every number in a particular area, creating a
`“potentially dangerous” situation
`in which no
`outbound calls (including, for example, emergency
`calls) could be placed. H.R. Rep. No. 102-317, at 10
`(1991), available at 1991 WL 245201. Although
`Congress has not updated the TCPA to address
`technological changes, like the rise of texting, courts
`have generally interpreted the “call[s]” proscribed by
`the TCPA to include text messages. See Campbell-
`Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016).
`2. As relevant here, the TCPA contains three
`exceptions to its prohibition on calls made using an
`ATDS. First, the statute does not prohibit ATDS calls
`made with the recipient’s “prior express consent.” 47
`U.S.C. §227(b)(1)(A). While this exception was
`
`
`
`6
`
`relatively straightforward to apply in 1991 when most
`telephones numbers were landline numbers that
`changed infrequently, it has become more challenging
`in recent years, as tens of millions of phone numbers
`are transferred (or “recycled”) every year from one
`user to another when phone plans expire or users
`otherwise change their numbers. See Second Notice of
`Inquiry, Advanced Methods to Target and Eliminate
`Unlawful Robocalls, 32 FCC Rcd. 6,007, 6,009 ¶5
`(2017). As a result, it is not unusual to dial the
`number of a person who had given consent but—
`because the number has been recycled—inadvertently
`reach a different person who has not given consent at
`the same number, especially because there is no
`reliable source for verifying the current ownership of
`a particular phone number. Second, the TCPA excepts
`calls “made for emergency purposes.” 47 U.S.C.
`§227(b)(1)(A).
` The FCC has defined the term
`“emergency” to mean calls “made necessary in any
`situation affecting
`the health and safety of
`consumers.” 47 C.F.R. §64.1200(f)(4). Third, the
`TCPA excepts 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).
`3. The TCPA includes a private right of action that
`carries substantial potential penalties. 47 U.S.C.
`§227(b)(3). A caller who places a call to a cell phone
`without consent using an ATDS is subject to an
`automatic $500 statutory penalty per call, with treble
`damages available—increasing the potential statutory
`penalty to $1,500 per call—“[i]f the court finds that the
`defendant willfully or knowingly” committed the
`violation. Id. §227(b)(3)(B)-(C). The substantial
`
`
`
`7
`
`statutory penalties available under this private right
`of action have made the TCPA one of the more
`frequently
`litigated
`federal statutes, and
`the
`availability of fixed statutory penalties that arguably
`obviate the need to prove individualized damages has
`made it a frequent basis for putative class actions.
`See, e.g., Krakauer v. Dish Network, L.L.C., 925 F.3d
`643, 655-56 (4th Cir. 2019); Marissa A. Potts, “Hello,
`It’s Me [Please Don’t Sue Me!]”: Examining the FCC’s
`Overbroad Calling Regulations Under the TCPA, 82
`Brook. L. Rev. 281, 302-03 (2016) (“Recent trends in
`TCPA litigation show that TCPA lawsuits are clogging
`the judicial system. These lawsuits attract plaintiffs’
`attorneys because they frequently provide lucrative
`class-action settlement opportunities.”
`(footnote
`omitted)).
`B. Factual Background and Proceedings
`Below
`1. Facebook operates a social-media service with
`more than 2.4 billion users across the globe, including
`more than 190 million users in the United States.
`Facebook’s users create personal profiles and share
`messages, photographs, and other content with other
`users. Because Facebook’s users often share personal
`information, Facebook—like many companies—allows
`its users to opt in to certain “extra security feature[s]”
`to protect that information. App.40. One of these opt-
`in security features allows a user to provide a mobile
`telephone number for Facebook to contact the user
`with a text-message “login notification” that alerts the
`user when the user’s Facebook account is accessed
`from a potentially suspicious location—i.e., a virtually
`real-time message alerting the user that, at a specific
`
`
`
`8
`
`time, someone attempted to access the user’s account
`from an unknown device or browser. App.40. If the
`user does not recognize the log-in attempt, the
`notification enables the user to take immediate action
`and secure the account, thereby preventing improper
`access by an unknown actor.
`2. In March 2015, respondent Noah Duguid filed
`a putative class action alleging that Facebook violated
`the TCPA’s prohibition on making calls using an
`ATDS. App.42. Duguid asserted that, although he
`was and is not a Facebook user and had never
`provided Facebook with his phone number or consent
`(but likely had a recycled number associated with
`another Facebook user), Facebook sent him several,
`sporadic login-notification text messages in 2014
`using an ATDS, in violation of 47 U.S.C. §227(b)(1)(A).
`App.4-5. The messages, each unique, alerted Duguid
`that an unrecognized browser at a specific time
`attempted to access a Facebook account associated
`with his phone number: “Your Facebook account was
`accessed [by/from] <browser> at <time>. Log in for
`more info.” App.4. Duguid unsuccessfully attempted
`to unsubscribe to the Facebook alerts. App.4-5.
`Duguid’s putative class action against Facebook
`alleges that each of these security messages violates
`the TCPA’s prohibition on calls made with an ATDS.
`App.5; App.42. Duguid alleged that the messages
`were sent via an ATDS and that Facebook had acted
`willfully or knowingly in sending the text messages,
`and that he and the putative class members were
`therefore entitled to $1,500 in treble damages for each
`message. CA9.R.Excerpts.62-63, ¶¶51-53.
`
`
`
`9
`
`3. Facebook moved to dismiss, raising both
`constitutional and statutory defenses to Duguid’s
`amended complaint.1 Facebook’s argument that the
`TCPA’s prohibition violated the First Amendment
`prompted the federal government to intervene for the
`limited
`purpose
`of
`defending
`the TCPA’s
`constitutionality. See N.D.Cal.Dkt.41-44. The district
`court granted Facebook’s motion to dismiss. App.51-
`52.
` The court held that Duguid’s conclusory
`allegations that Facebook used an ATDS were
`insufficient because
`“plaintiff’s own allegations
`suggest direct targeting that is inconsistent with the
`sort of random or sequential number generation
`required for an ATDS.” App.47. In particular,
`“Duguid’s allegations indicated that Facebook’s login
`notification text messages are targeted to specific
`phone numbers and are triggered by attempts to log in
`to Facebook accounts associated with those phone
`numbers.” App.48. Because the district court ruled
`for Facebook on the scope of the ATDS, the court did
`not reach Facebook’s First Amendment objections.
`The district court also declined to reach Facebook’s
`argument that the login notifications fell within the
`emergency exception because they convey information
`that protects users from a potential compromise of
`their accounts. App.51.
`4. Duguid appealed. Facebook raised its First
`Amendment arguments as alternative bases to affirm,
`and the
`federal government again
`limited
`its
`participation to the constitutional issues. While
`
`1 The district court had previously granted an earlier motion to
`dismiss without prejudice and gave Duguid an opportunity to
`amend his initial complaint. See App.42.
`
`
`
`10
`
`Duguid’s appeal was pending in the Ninth Circuit, the
`court issued an opinion on the scope of the TCPA’s
`ATDS definition in Marks v. Crunch San Diego, LLC,
`904 F.3d 1041 (9th Cir. 2018). Specifically, Marks
`addressed “whether, in order to be an ATDS, a device
`must dial numbers generated by a random or
`sequential number generator.” Id. at 1050. The Ninth
`Circuit ultimately concluded “that the statutory
`definition of ATDS is not limited to devices with the
`capacity to call numbers produced by a ‘random or
`sequential number generator,’ but also includes
`devices with the capacity to dial stored numbers
`automatically.” Id. at 1052. In reaching that
`conclusion, the Ninth Circuit expressly disagreed with
`the Third Circuit’s conclusion “that a device must be
`able to generate random or sequential numbers in
`order to qualify as an ATDS.” Id. at 1052 n.8.
`The Ninth Circuit received supplemental briefing
`here on Marks, and then reversed the district court’s
`decision. As to the statutory issue, the court
`acknowledged Facebook’s argument that, if Marks
`“mean[s] what it says,” it would sweep in “ubiquitous
`devices
`and
`commonplace
`consumer
`communications”—including any text message or call
`placed from any modern smartphone. App.7. The
`Ninth Circuit nevertheless reaffirmed Marks and held
`that Duguid’s allegations were sufficient to satisfy the
`Ninth Circuit’s “gloss on the statutory text.” App.8-9.
`Because the Ninth Circuit concluded that the
`TCPA’s prohibition on calls from an ATDS would
`encompass Facebook’s login-notification messages,
`the court had to reach the question of the prohibition’s
`constitutionality. Although Facebook raised broader
`
`
`
`11
`
`First Amendment objections to the prohibition—
`namely, that the Ninth Circuit’s broad conception of
`an ATDS in Marks renders the prohibition “wildly
`overbroad,” CA9.Suppl.Br.28, the Ninth Circuit
`focused its First Amendment analysis exclusively on
`Facebook’s argument that the government-debt-
`collection exception that Congress added in 2015
`rendered the TCPA’s prohibition content-based.
`App.11-12. The Ninth Circuit reasoned that because
`the government-debt-collection exception “targets
`speech based on its communicative content, the
`exception is content-based and subject to strict
`scrutiny.” App.11-12. The court then held that the
`government-debt-collection exception is “insufficiently
`tailored to advance the government’s interests in
`protecting privacy or the public fisc” and so fails strict
`scrutiny. App
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