Case: 19-511 FACEBOOK, INC. V. DUGUID (2020-December-08)
QUESTION PRESENTED:
Congress enacted the Telephone Consumer Protection Act of 1991 ("TCP A") 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. §227 (b)(l )(A)(iii). Here, Petitioner was sued for violating this prohibition and defended on the ground, 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 extra ordinary 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.
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."
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DateProceedings and Orders
Oct 17 2019 | Petition for a writ of certiorari filed. (Response due November 20, 2019)
Nov 07 2019 | Blanket Consent filed by Petitioner, Facebook, Inc.
Nov 18 2019 | Waiver of right of respondent Noah Duguid to respond filed.
Nov 20 2019 | Brief amicus curiae of Credit Union National Association, Inc. filed.
Nov 20 2019 | Brief of respondent United States filed.
Nov 20 2019 | Brief amici curiae of Midland Credit Management, Inc. and Encore Capital Group, Inc. filed.
Nov 20 2019 | Brief amici curiae of Chamber of Commerce of the United States of America and Business Roundtable filed.
Nov 20 2019 | Brief amicus curiae of ACA International, Inc. filed.
Nov 20 2019 | Brief amicus curiae of Retail Litigation Center, Inc. filed.
Nov 25 2019 | Waiver of the 14-day waiting period under Rule 15.5 filed.
Nov 26 2019 | DISTRIBUTED for Conference of 12/13/2019.
Dec 02 2019 | Reply of petitioner Facebook, Inc. filed. (Distributed)
Dec 04 2019 | Response Requested. (Due January 3, 2020)
Jan 03 2020 | Brief of respondent Noah Duguid in opposition filed.
Jan 06 2020 | Letter waiving the 14-day waiting period for the distribution of the petition pursuant to Rule 15.5 filed.
Jan 08 2020 | DISTRIBUTED for Conference of 1/24/2020.
Jan 10 2020 | Reply of petitioner Facebook, Inc. filed. (Distributed)
Jul 07 2020 | Supplemental brief of petitioner Facebook, Inc. filed. (Distributed)
Jul 08 2020 | DISTRIBUTED for Conference of 7/8/2020.
Jul 08 2020 | Supplemental brief of respondent Noah Duguid filed.
Jul 09 2020 | Petition GRANTED limited to Question 2 presented by the petition.
Jul 24 2020 | Motion for an extension of time filed.
Jul 24 2020 | Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 4, 2020. The time to file respondents' brief on the merits is extended to and including October 16, 2020.
Sep 04 2020 | Brief of respondent United States in support filed.
Sep 04 2020 | Joint appendix filed.
Sep 04 2020 | Brief of petitioner Facebook, Inc. filed.
Sep 10 2020 | Brief amicus curiae of Washington Legal Foundation filed.
Sep 10 2020 | Brief amici curiae of Professional Association for Customer Engagement and Noble Systems Corporation filed.
Sep 11 2020 | Brief amicus curiae of Home Depot, Inc. filed.
Sep 11 2020 | Brief amicus curiae of Salesforce.com, Inc. filed.
Sep 11 2020 | Brief amicus curiae of Midland Credit Management, Inc. filed.
Sep 11 2020 | Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
Sep 11 2020 | Brief amicus curiae of Credit Union National Association, Inc. filed.
Sep 11 2020 | Brief amicus curiae of Portfolio Recovery Associates, LLC filed.
Sep 11 2020 | Brief amicus curiae of Quicken Loans, LLC filed.
Sep 11 2020 | Brief amici curiae of “On-Demand” Technology Platforms filed.
Sep 11 2020 | Brief amici curiae of Retail Litigation Center, Inc., et al. filed.
Sep 11 2020 | Brief amici curiae of Life Insurance Direct Marketing Association, American Property Casualty Insurance Association and Consumer Credit Industry Association filed.
Sep 11 2020 | Brief amici curiae of Healthcare Companies filed.
Sep 16 2020 | SET FOR ARGUMENT on Tuesday, December 8, 2020.
Oct 08 2020 | Record requested from the U.S.C.A. 9th Circuit.
Oct 08 2020 | Record received from the U.S.C.A. 9th Circuit is electronic and located on PACER.
Oct 16 2020 | Brief of respondent Noah Duguid filed.
Oct 23 2020 | Brief amici curiae of Electronic Privacy Information Center, et al. filed. (Distributed)
Oct 23 2020 | Brief amici curiae of 21 Members of Congress filed. (Distributed)
Oct 23 2020 | Brief amici curiae of State of North Carolina, et al. filed. (Distributed)
Oct 23 2020 | Brief amicus curiae of Main Street Alliance filed. (Distributed)
Oct 23 2020 | Brief amici curiae of John McCurley and Dan Deforest filed. (Distributed)
Oct 23 2020 | Motion for divided argument filed by petitioner Facebook, Inc.
Oct 23 2020 | Brief amicus curiae of Dr. Henning Schulzrinne filed. (Distributed)
Oct 23 2020 | Brief amici curiae of National Consumer Law Center, et al. filed. (Distributed)
Oct 27 2020 | CIRCULATED
Nov 09 2020 | Motion for divided argument filed by petitioner GRANTED.
Nov 16 2020 | Reply of petitioner Facebook, Inc. filed. (Distributed)
Nov 16 2020 | Reply of respondent United States in support of petitioner filed. (Distributed)
Dec 08 2020 | Argued. For petitioner: Paul D. Clement, Washington, D. C.; and Jonathan Y. Ellis, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as respondent supporting petitioner) For respondents: Bryan A. Garner, Dallas, Tex.
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Congress enacted the Telephone Consumer Protection Act of 1991 ("TCP A") 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. §227 (b)(l )(A)(iii). Here, Petitioner was sued for violating this prohibition and defended on the ground, 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 extra ordinary 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.
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."
SUPPORT what we are doing here by contributing to our Patreon at https://www.patreon.com/supremecourt
DateProceedings and Orders
Oct 17 2019 | Petition for a writ of certiorari filed. (Response due November 20, 2019)
Nov 07 2019 | Blanket Consent filed by Petitioner, Facebook, Inc.
Nov 18 2019 | Waiver of right of respondent Noah Duguid to respond filed.
Nov 20 2019 | Brief amicus curiae of Credit Union National Association, Inc. filed.
Nov 20 2019 | Brief of respondent United States filed.
Nov 20 2019 | Brief amici curiae of Midland Credit Management, Inc. and Encore Capital Group, Inc. filed.
Nov 20 2019 | Brief amici curiae of Chamber of Commerce of the United States of America and Business Roundtable filed.
Nov 20 2019 | Brief amicus curiae of ACA International, Inc. filed.
Nov 20 2019 | Brief amicus curiae of Retail Litigation Center, Inc. filed.
Nov 25 2019 | Waiver of the 14-day waiting period under Rule 15.5 filed.
Nov 26 2019 | DISTRIBUTED for Conference of 12/13/2019.
Dec 02 2019 | Reply of petitioner Facebook, Inc. filed. (Distributed)
Dec 04 2019 | Response Requested. (Due January 3, 2020)
Jan 03 2020 | Brief of respondent Noah Duguid in opposition filed.
Jan 06 2020 | Letter waiving the 14-day waiting period for the distribution of the petition pursuant to Rule 15.5 filed.
Jan 08 2020 | DISTRIBUTED for Conference of 1/24/2020.
Jan 10 2020 | Reply of petitioner Facebook, Inc. filed. (Distributed)
Jul 07 2020 | Supplemental brief of petitioner Facebook, Inc. filed. (Distributed)
Jul 08 2020 | DISTRIBUTED for Conference of 7/8/2020.
Jul 08 2020 | Supplemental brief of respondent Noah Duguid filed.
Jul 09 2020 | Petition GRANTED limited to Question 2 presented by the petition.
Jul 24 2020 | Motion for an extension of time filed.
Jul 24 2020 | Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 4, 2020. The time to file respondents' brief on the merits is extended to and including October 16, 2020.
Sep 04 2020 | Brief of respondent United States in support filed.
Sep 04 2020 | Joint appendix filed.
Sep 04 2020 | Brief of petitioner Facebook, Inc. filed.
Sep 10 2020 | Brief amicus curiae of Washington Legal Foundation filed.
Sep 10 2020 | Brief amici curiae of Professional Association for Customer Engagement and Noble Systems Corporation filed.
Sep 11 2020 | Brief amicus curiae of Home Depot, Inc. filed.
Sep 11 2020 | Brief amicus curiae of Salesforce.com, Inc. filed.
Sep 11 2020 | Brief amicus curiae of Midland Credit Management, Inc. filed.
Sep 11 2020 | Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
Sep 11 2020 | Brief amicus curiae of Credit Union National Association, Inc. filed.
Sep 11 2020 | Brief amicus curiae of Portfolio Recovery Associates, LLC filed.
Sep 11 2020 | Brief amicus curiae of Quicken Loans, LLC filed.
Sep 11 2020 | Brief amici curiae of “On-Demand” Technology Platforms filed.
Sep 11 2020 | Brief amici curiae of Retail Litigation Center, Inc., et al. filed.
Sep 11 2020 | Brief amici curiae of Life Insurance Direct Marketing Association, American Property Casualty Insurance Association and Consumer Credit Industry Association filed.
Sep 11 2020 | Brief amici curiae of Healthcare Companies filed.
Sep 16 2020 | SET FOR ARGUMENT on Tuesday, December 8, 2020.
Oct 08 2020 | Record requested from the U.S.C.A. 9th Circuit.
Oct 08 2020 | Record received from the U.S.C.A. 9th Circuit is electronic and located on PACER.
Oct 16 2020 | Brief of respondent Noah Duguid filed.
Oct 23 2020 | Brief amici curiae of Electronic Privacy Information Center, et al. filed. (Distributed)
Oct 23 2020 | Brief amici curiae of 21 Members of Congress filed. (Distributed)
Oct 23 2020 | Brief amici curiae of State of North Carolina, et al. filed. (Distributed)
Oct 23 2020 | Brief amicus curiae of Main Street Alliance filed. (Distributed)
Oct 23 2020 | Brief amici curiae of John McCurley and Dan Deforest filed. (Distributed)
Oct 23 2020 | Motion for divided argument filed by petitioner Facebook, Inc.
Oct 23 2020 | Brief amicus curiae of Dr. Henning Schulzrinne filed. (Distributed)
Oct 23 2020 | Brief amici curiae of National Consumer Law Center, et al. filed. (Distributed)
Oct 27 2020 | CIRCULATED
Nov 09 2020 | Motion for divided argument filed by petitioner GRANTED.
Nov 16 2020 | Reply of petitioner Facebook, Inc. filed. (Distributed)
Nov 16 2020 | Reply of respondent United States in support of petitioner filed. (Distributed)
Dec 08 2020 | Argued. For petitioner: Paul D. Clement, Washington, D. C.; and Jonathan Y. Ellis, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as respondent supporting petitioner) For respondents: Bryan A. Garner, Dallas, Tex.
