In a victory for Facebook, but what some legislators call a misinterpretation that could open the robocall floodgates, the Supreme Court has ruled unanimously that its automatic texting regime for informing a user when someone is trying to log into their account from a new device does not violate the Telephone Consumer Protection Act.
Some top Democrats said the court decision was a disaster and they were preparing legislation to reverse it.
Facebook had been the subject of a class action suit over that texting regime alleging that it violated the TCPA because it maintained a database that stored numbers to be automatically dialed. Facebook said it was not using a "random or sequential number generator," which is what the TCPA restricts.
The Ninth Circuit court of Appeals sided with the plaintiffs that dialing automatically stored numbers triggered the TCPA restriction. But the Supremes disagreed.
The decision hinged on grammar, with the Supreme Court concluding that under the TCPA an automatic dialing system must be able either to store a random number using a random or sequential number generator or produce a number with such a generator. Facebook said since it is not randomly generating numbers its autodialer is OK. The Supremes agreed.
"The statutory context confirms that the TCPA’s autodialer definition excludes equipment that does not use a random or sequential number generator," said the court. "Congress’ chosen definition of an autodialer requires that the equipment in question must use a random or sequential number generator. That definition excludes equipment like Facebook’s login notification system, which does not use such technology."
Justice Sonia Sotomayor delivered the opinion, which did not sit with some TCPA fans on the Hill.
In a joint statement, Rep. Anna Eshoo (D-Calif.) and Sen. Ed Markey (D-Mass.) slammed the court's narrow interpretation of autodialer as a disastrous decision and accused the court of abandoning consumers to what will be a flood of robocalls.
"It was clear when the TCPA was introduced that Congress wanted to ban dialing from a database. By narrowing the scope of the TCPA, the Court is allowing companies the ability to assault the public with a non-stop wave of unwanted calls and texts, around the clock," they said in a joint statement.
“Fortunately, we can and will act to make right what the Supreme Court got wrong. We plan to soon introduce legislation to amend the TCPA, fix the Court’s error, and protect consumers. If the Justices find their private mobile phones ringing non-stop from now until our legislation becomes law, they’ll only have themselves to blame."
Markey and Eshoo had joined in an amicus brief in the case calling on the court to uphold the Ninth Circuit, but that call went unanswered.
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