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Supreme Court ruling could make robocalls ‘virtually unstoppable’

Ethan Wolff-Mann
·Senior Writer
·5-min read

Facebook (FB) is fighting a case in the Supreme Court. It’s not about fake news, foreign influence, censorship, or antitrust issues – it’s about robocalls.

This is the second time in 2020 that the Supreme Court has heard a case involving robocalls.

Efforts to fight robocalls through new legislation foundered this year as the divided Congress left out key provisions that defined exactly what a robocall really is.

In 2014, Noah Duguid started receiving a ton of texts from Facebook regarding his "account" – even though he didn’t have a Facebook account. Irritated, he asked Facebook to stop sending him messages. The company did not stop and he sued. Now, it’s gone all the way to the Supreme Court.

This type of automated phone activity can take the form of texts or calls and is a different kind of robocall than the obvious fraudsters who say that you’ve “won a free vacation” or want to sell you a new car warranty. But they do represent a significant problem that vexes anyone with a phone.

In almost all circumstances, a business needs your permission to send you an automated call or text. The Telephone Consumer Protection Act of 1991 applies this to companies that use “autodialers,” essentially technology that stores and dials numbers.

WASHINGTON, DC - JULY 06:  A set of microphones stand outside of the U.S. Supreme Court on July 6, 2020 in Washington, DC. The Supreme Court issued a unanimous opinion on Monday that says states can require Electoral College voters to back the winner of their states popular vote in a presidential election. The court also upheld a 1991 law that bars robocalls to cellphones. (Photo by Drew Angerer/Getty Images)
A set of microphones stand outside of the U.S. Supreme Court on July 6, 2020 in Washington, DC. The Supreme Court issued a unanimous opinion on Monday that says states can require Electoral College voters to back the winner of their states popular vote in a presidential election. The court also upheld a 1991 law that bars robocalls to cellphones. (Photo by Drew Angerer/Getty Images)

But Facebook says that its technology doesn’t count as an autodialer because it doesn’t dial randomly. That’s the question in front of the court: What is an autodialer?

An exception to smartphones

Facebook and other business-friendly interests say that you can’t define an autodialer as simply a device that stores and dials numbers because that would mean the law would apply to a modern smartphone, which can also store and dial numbers.

But in a new letter to the court against Facebook this week, consumer groups including the National Consumer Law Center, the Consumer Federation of America, and Consumer Reports argue that this is disingenuous, and that no one really thinks smartphones are involved in the spam calling or texting.

Furthermore, the letter argues, if the court ruled in favor of the tech behemoth, “users would be defenseless against the increasing barrage of robocalls.”

“The consequence will be that autodialed calls and texts to all cellphones and the other protected lines will be virtually unstoppable,” the consumer groups wrote.

Speaking to Yahoo Finance, the National Consumer Law Center’s Margot Saunders, one of the authors of the letter to the court, explained the difference between autodialers that companies use and smartphones.

“That’s just speed dialing,” Saunders said of what smartphones do, adding that the consumer groups couldn’t find a single case of smartphone robocalling that ended in a lawsuit.

In this Sunday, Aug. 11, 2019, photo an iPhone displays the Facebook app in New Orleans. (AP Photo/Jeny Kane)
Facebook finds itself in the Supreme Court in a fight about robocalls. (AP Photo/Jeny Kane)

As the letter argues, “Smartphones are simply small computers, which standing alone do not have the ability to robocall people en masse.” In other words, they should not be included in the robocall debate — something the FCC could clear up if it chose to, but has not.

Politics is getting in the way?

Saunders said companies like Facebook would rather simply make sure unwanted messages are legal than to deal with stopping the spam texts. Facebook did not respond to a request for comment.

Joining Facebook’s side, she added, are many companies and corporate interests, which were part of the reason why the robocall bill that passed Congress didn’t previously resolve the issue.

In the divided Congress, protections that would have solved this problem were not included in the robocall bill that passed in 2019. And with conservative-leaning Amy Coney Barrett recently confirmed to the Supreme Court, consumer advocates are concerned a ruling in Facebook’s favor will remove people’s means to stop unwanted texts and calls.

The Federal Communications Commission has put anti-robocalling efforts high on its list of priorities and the agency has been active, especially fighting fraudulent calls. But the FCC hasn’t used its authority to make a ruling that smartphones don’t count as robocalling machines, potentially clearing the Facebook matter up.

Federal Communications Commission Chairman Ajit Pai testifies during a Senate Commerce, Science, and Transportation committee hearing to examine the Federal Communications Commission on Capitol Hill in Washington, Wednesday, June 24, 2020. (Alex Wong/Pool via AP)
Federal Communications Commission Chairman Ajit Pai testifies during a Senate Commerce, Science, and Transportation committee hearing to examine the FCC on Capitol Hill in Washington, June 24, 2020. (Alex Wong/Pool via AP)

Saunders said the industry-friendly agency’s stalling is because it’s facing a dilemma. If Pai and the FCC rule in favor of consumers who don’t like spam calls and texts, Pai may lose friends in the business community. And if it rules in a way advantageous to Facebook, the anti-robocall champion suddenly is on the side of the robocallers.

“This has been pending the FCC for two years and [FCC Chair Ajit] Pai has not touched it,” Saunders said. “It’s the third rail.”

The FCC declined to comment on the matter, or Saunders’ reasoning. The court will hear the case in December with a ruling expected in the spring.

Ethan Wolff-Mann is a writer at Yahoo Finance focusing on consumer issues, personal finance, retail, airlines, and more. Follow him on Twitter @ewolffmann.