Noah Duguid v. Facebook, Inc., 926 F.3d 1146

Background

Plaintiff Noah Duguid (not a Facebook user) received repeated, unsolicited automated security text messages from Facebook beginning in 2014 despite requesting they stop.
Duguid alleged Facebook used an ATDS under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and sued on behalf of two putative classes seeking statutory damages and injunctive relief.
The district court dismissed the amended complaint with prejudice for failure to plead use of an ATDS; Duguid appealed.
The Ninth Circuit framed the ATDS definition per Marks v. Crunch San Diego: equipment with the capacity to (1) store numbers to be called or (2) produce numbers using a random/sequential generator, and to dial such numbers automatically.
Facebook also challenged a 2015 TCPA amendment (adding an exception for calls "made solely to collect a debt owed to or guaranteed by the United States") as violating the First Amendment.
The Ninth Circuit reversed dismissal (finding Duguid adequately pleaded ATDS use), held the 2015 "debt-collection" exception content-based and unconstitutional, and severed that exception, leaving the remainder of the TCPA intact.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Duguid plausibly alleged Facebook used an ATDS under the TCPA	Facebook maintained a database of numbers and automated templated messages; this plausibly shows equipment that can store numbers and dial automatically	Marks should not be read to cover responsive systems or ordinary smartphones; Facebook's system is reflexive/ responsive, not storing numbers "to be called"	Duguid adequately pleaded ATDS use under Marks; allegations accepted at pleading stage were sufficient; dismissal reversed
Whether the emergency exception applies	Duguid alleged he was not a Facebook user and told Facebook to stop, so messages were not emergency communications	Facebook argued messages qualified as emergency-purpose calls under FCC's broad construction	Emergency exception did not apply on pleadings because Duguid alleged no account/security emergency relevant to him
Whether the 2015 debt-collection exception to the TCPA is content-neutral	Duguid (and government defense) argued the exception is relationship- or purpose-based and permissible	Facebook challenged constitutionality; the government defended the exception as necessary to permit federal debt collection and protect the public fisc	The court held the exception is content-based (targets speech based on purpose/content) and thus subject to strict scrutiny
Whether the debt-collection exception survives strict scrutiny and is severable	Duguid argued the exception is underinclusive and not narrowly tailored; sought severance	Government argued privacy interest justifies the exception or that protecting the public fisc is compelling	Exception fails strict scrutiny (underinclusive and not least restrictive); but it is severable from the TCPA, so court excised the exception and left the TCPA operative

Key Cases Cited

Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) (rearticulates ATDS definition used by the Ninth Circuit)
ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (rejects certain FCC ATDS interpretations and cautions against overbroad readings)
Am. Ass'n of Political Consultants, Inc. v. FCC, 923 F.3d 159 (4th Cir. 2019) (holds the TCPA's debt-collection exemption content-based and severs it)
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (establishes framework distinguishing content-based from content-neutral restrictions)
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (principles on concrete injury for Article III standing/pleading)
Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (TCPA standing and injury analysis)
Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) (discusses TCPA's First Amendment posture and prior Ninth Circuit treatment)
Moser v. Fed. Commc'ns Comm'n, 46 F.3d 970 (9th Cir. 1995) (upheld pre-amendment TCPA as content-neutral)