Facebook v. Duguid: the texts he never asked for, and the autodialer rule
Noah Duguid had never had a Facebook account, but Facebook kept texting his phone about logins to one. He sued under the Telephone Consumer Protection Act. On April 1, 2021, the Supreme Court ruled against him: equipment is an autodialer under the Act only if it uses a random or sequential number generator. The Court said its ruling does not touch the separate ban on prerecorded and artificial-voice calls.
A public record, not a client of this firm. Everything on this page comes from the Supreme Court's opinion cited at the end. The Court decided a question of law and awarded no damages. Usher Law Group did not represent anyone in this matter, we publish no results of our own, and nothing here predicts the outcome of any other case.
Facebook offers users an optional security feature. When someone tries to log in to their account from an unknown device or browser, Facebook sends a text message to the cell phone number on file, so the user can secure the account.
In 2014, Noah Duguid started receiving those texts. They said someone had tried to access the Facebook account linked to his number from an unknown browser. But Duguid had never had a Facebook account and had never given Facebook his number. The Court noted that he may have been assigned a recycled number that once belonged to a Facebook user.
He tried without success to make the texts stop. He filed a putative class action under the Telephone Consumer Protection Act, claiming Facebook stored phone numbers in a database and programmed its equipment to send automated texts to them. The case was about more than one man's phone. A class of people who received unwanted automated texts, at up to $1,500 each, is a large case, and the answer would decide how far the TCPA reached into ordinary business messaging.
What the law says
Congress passed the TCPA in 1991 to deal with a flood of intrusive telemarketing calls. It makes it unlawful to call a cell phone using an "automatic telephone dialing system," or using an artificial or prerecorded voice, without the called party's prior express consent (47 U.S.C. § 227(b)(1)(A)). The parties in Duguid did not dispute that the ban reaches text messages, and the Court assumed it did.
A person can sue for $500 per violation, and a court can raise that to $1,500 if the violation was willful or knowing (§ 227(b)(3)). With automated systems sending thousands of messages, those figures add up quickly in a class action.
The fight was over the definition. The statute defines an autodialer as equipment with the capacity "to store or produce telephone numbers to be called, using a random or sequential number generator," and to dial them (§ 227(a)(1)). Does "using a random or sequential number generator" describe both "store" and "produce," or only "produce"? If only "produce," then any equipment that stores numbers and dials them automatically could qualify.
What the courts did
The district court dismissed the case, finding that Facebook's system did not use a random or sequential number generator. The Ninth Circuit reversed, holding that the TCPA covers a notification system that can dial stored numbers automatically.
The Supreme Court heard argument on December 8, 2020, and decided the case on April 1, 2021. Justice Sotomayor wrote for eight Justices; Justice Alito concurred in the judgment. The Court reversed.
- The grammar. The phrase "using a random or sequential number generator" modifies both verbs. To be an autodialer, the equipment must use such a generator either to store numbers or to produce them.
- The purpose. Congress wrote the definition to target equipment that dialed blocks of random or sequential numbers, which could tie up emergency lines and every line of a business with sequentially numbered phones.
- The alternative. Duguid's reading would capture virtually all modern cell phones, since they store numbers and can dial them automatically. The Court would not read the statute that broadly.
Facebook's login notification system sent texts to numbers tied to specific accounts. It did not generate numbers randomly or in sequence, so it was not an autodialer, and Duguid's autodialer claim failed.
The Court also addressed what the ruling does not do. The TCPA separately prohibits calls using "an artificial or prerecorded voice" to home phones and cell phones unless an exception applies. "Our decision does not affect that prohibition," the Court wrote. To Duguid's argument that the definition was outdated, the Court answered that his quarrel was with Congress.
What it means for you now
After Duguid, many modern calling systems that dial from a list of customers are not autodialers under the TCPA. But three sets of rules still apply to a collector's calls and texts. Our page on robocalls and texts explains how they fit together.
- Prerecorded and artificial voices. A prerecorded collection message to your cell phone without prior express consent is still covered by the TCPA, regardless of the dialing equipment.
- Call frequency. Under Regulation F, a debt collector is presumed to violate the law if it places more than seven telephone calls within seven days about a particular debt. Texts and emails do not count toward that presumption, though they can still be harassment. The call log keeps the count.
- Florida's rule. The Florida Consumer Collection Practices Act forbids any person, including the original creditor, from willfully communicating with a debtor or the debtor's family with harassing frequency (Fla. Stat. § 559.72(7)).
The TCPA has no fee-shifting clause. The FDCPA and the FCCPA require a company found liable to pay the consumer's reasonable attorney's fees and costs. The rules in each state are on our New York, New Jersey and Florida pages.
The pages this story points to
The TCPA
Consent, prerecorded calls, damages and the deadline.
Read →Too many calls
The seven-in-seven presumption and how to count.
Read →Medley v. DISH Network
Prerecorded calls after a lawyer's letter, and a Florida verdict.
Read →Sources. Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), No. 19-511, opinion (Supreme Court); 47 U.S.C. § 227; 12 C.F.R. § 1006.14; Fla. Stat. § 559.72.
Common questions
Does Duguid mean debt collectors can robocall my cell phone?
No. Duguid narrowed only the definition of an automatic telephone dialing system. The TCPA separately prohibits calls to a cell phone using an artificial or prerecorded voice without prior express consent, and the Court said its decision does not affect that prohibition. Collection calls are also limited by the FDCPA and Regulation F.
What is a random or sequential number generator?
It is technology that creates telephone numbers to dial, either at random or in order, rather than dialing numbers from a stored list of specific people. The Court held the TCPA's autodialer definition requires that the equipment use such a generator to store or to produce the numbers it calls.
Does the TCPA pay my lawyer if I win?
No. The TCPA provides $500 per violation, up to $1,500 if the violation was willful or knowing, but it has no fee-shifting clause. The FDCPA, the FCRA and the Florida Consumer Collection Practices Act do require a company found liable to pay the consumer's reasonable attorney's fees and costs, which is why collection-call cases often plead more than one law.
Tell us what they did.
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