Duguid v. Facebook, Inc., No. 17-15320 (9th Cir. 2019)Annotate this Case
The Ninth Circuit reversed the district court's dismissal of the complaint for failure to state a claim under the Telephone Consumer Protection Act. Plaintiff alleged that Facebook used automated telephone dialing systems (ATDS) to alert users, as a security precaution, when their account was accessed from an unrecognized device or browser. However, plaintiff was not a Facebook customer and his repeated attempts to terminate the alerts were unsuccessful.
The panel held that plaintiff's allegations under the Act were sufficient to withstand Facebook's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In this case, the messages plaintiff received were automated, unsolicited, and unwanted.
As to the constitutional issue, the panel joined the Fourth Circuit and 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 the newly appended "debt-collection exception" as an unconstitutional restriction on speech. Therefore, the panel remanded for further proceedings.