Restaurants Say Reservation Confirmations Are Not Nuisance Robocalls

September 14, 2020 by Dan McCue

WASHINGTON – The Restaurant Law Center wants the Supreme Court to overturn a 9th Circuit ruling that effectively classified calls and text messages to confirm dining reservations as nuisance robocalls.

The Center, an industry association representing about 1 million restaurant and food service outlets across the country, contend the 9th Circuit ruling in Facebook v. Duguid creates an “untenable and abusive legal landscape for legitimate businesses and consumers who request to communicate using modern technology.”

The plaintiff in the underlying case, Noah Duguid, sued Facebook after the social media giant sent him numerous automatic text messages without his consent.

Duguid said he was not on Facebook, and yet for 10 months he was repeatedly alerted by text message that someone was attempting to access his nonexistent Facebook account.

Duguid sued Facebook for violating a provision of the Telephone and Consumer Protection Act of 1991 that forbids calls placed using an automated telephone dialing system or autodialer.

A federal district court dismissed the lawsuit, accepting Facebook’s explanation that the equipment it used to send text messages to Duguid was not an ATDS within the meaning of the statute.

But the 9th Circuit reversed the lower court ruling, concluding that Facebook’s equipment plausibly fell under the definition of an ATDS because it had “the capacity to store numbers to be called and to dial such numbers automatically.”

In July, the Supreme Court agreed to hear the case, specifically to address a question at the heart of a nationwide circuit split: “Whether the definition of [an automatic telephone dialing system] … 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.’”

Currently, the 3rd, 7th, and 11th Circuits require number generation in order for technology to qualify as an ATDS. The 2nd and 9th Circuits, in contrast, have construed the statutory text more broadly and do not require number generation.

In its Amicus Brief, the Restaurant Law Center argues the resulting flurry of lawsuits and legal confusion caused by the circuit court split have forced restaurants and other retailers to choose between the types of communications valued by consumers or “exposing themselves to potentially crushing TCPA liability.”

“Rejecting the 9th Circuit’s interpretation will enable retailers and restaurants to send customers the information they want and need without facing the inherent risk of arbitrary and massive liability for doing so,” Restaurant Law Center Executive Director Angelo Amador said in a written statement. 

“This case is not about robocalls. It is about important communications that consumers want like reminders and confirmations from familiar businesses,” Amador said. 

“These types of communications, including those requested by consumers, are distinct from the types of intrusive robocalls that triggered Congress to write the TCPA. Overturning this case will enable customers to communicate with businesses using modern technology and will enable businesses to do so without threat of frivolous lawsuits,” he added. 

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