FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOAH DUGUID, individually and No. 17-15320
on behalf of himself and all
others similarly situated, D.C. No.
Plaintiff-Appellant, 3:15-cv-00985-JST
v.
OPINION
FACEBOOK, INC.,
Defendant-Appellee,
and
UNITED STATES OF AMERICA,
Intervenor-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted March 11, 2019
San Francisco, California
Filed June 13, 2019
2 DUGUID V. FACEBOOK
Before: J. Clifford Wallace, Eugene E. Siler, *
and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
SUMMARY **
Telephone Consumer Protection Act
The panel reversed the district court’s dismissal for
failure to state a claim of an action under the Telephone
Consumer Protection Act.
The panel held that the plaintiff adequately alleged that
defendant Facebook, Inc., placed calls using an automated
telephone dialing system, defined as “equipment which has
the capacity—(1) to store numbers to be called or (2) to
produce numbers to be called, using a random or sequential
number generator—and to dial such numbers
automatically.”
Joining the Fourth Circuit, the panel held that a 2015
amendment to the Act, excepting calls “made solely to
collect a debt owed to or guaranteed by the United States,”
was content-based and incompatible with the First
Amendment. The panel severed from the Act this “debt-
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DUGUID V. FACEBOOK 3
collection exception” as an unconstitutional restriction on
speech.
COUNSEL
Sergei Lemberg (argued), Lemberg Law LLC, Wilton,
Connecticut, for Plaintiff-Appellant.
Andrew B. Clubok (argued), Susan E. Engel, Samir Deger-
Sen, Latham & Watkins LLP, Washington, D.C.; Elizabeth
L. Deeley, Latham & Watkins LLP, San Francisco,
California; for Defendant-Appellee.
Lindsey Powell (argued), Michael S. Raab, Mark B. Stern,
Attorneys, Appellate Staff, Civil Division; Alex G. Tse,
United States Attorney; Joseph H. Hunt, Assistant Attorney
General; United States Department of Justice, Washington,
D.C.; for Intervenor-Appellee.
Shay Dvoretzky and Vivek Suri, Jones Day, Washington,
D.C.; Steven P. Lehotsky, United States Chamber Litigation
Center, Washington, D.C.; for Amicus Curiae Chamber of
Commerce of the United States of America.
OPINION
McKEOWN, Circuit Judge:
Almost thirty years ago, in the age of fax machines and
dial-up internet, Congress took aim at unsolicited robocalls
by enacting the Telephone Consumer Protection Act of 1991
(“TCPA”), 47 U.S.C. § 227. In the decades since, the TCPA
has weathered the digital revolution with few amendments.
4 DUGUID V. FACEBOOK
With important exceptions, the TCPA forbids calls placed
using an automated telephone dialing system (“ATDS”),
commonly referred to as an autodialer.
Noah Duguid claims that Facebook used an ATDS to
alert users, as a security precaution, when their account was
accessed from an unrecognized device or browser. For
unknown reasons, Duguid received the messages despite not
being a Facebook customer or user and never consenting to
such alerts. His repeated attempts to terminate the alerts
were unsuccessful.
Facebook challenges the adequacy of Duguid’s TCPA
allegations and, alternatively, claims that the statute violates
the First Amendment. We conclude that Duguid’s
allegations are sufficient to withstand Facebook’s motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
As to the constitutional question, we join the Fourth
Circuit and hold that a 2015 amendment to the TCPA, which
excepts calls “made solely to collect a debt owed to or
guaranteed by the United States,” is content-based and
incompatible with the First Amendment. Am. Ass’n of
Political Consultants, Inc. v. FCC, 923 F.3d 159 (4th Cir.
2019) (hereinafter, AAPC). But rather than toss out the
entire TCPA—a longstanding and otherwise constitutional
guardian of consumer privacy—we sever the newly
appended “debt-collection exception” as an unconstitutional
restriction on speech.
BACKGROUND
I. The Telephone Consumer Protection Act
In what was thought to be telemarketing’s heyday,
Congress enacted the TCPA to “protect the privacy interests
DUGUID V. FACEBOOK 5
of residential telephone subscribers by placing restrictions
on unsolicited, automated telephone calls.” S. Rep. No.
102–178, at 1 (1991). With certain exceptions, the TCPA
bans calls (including text messages) placed using an ATDS.
47 U.S.C. § 227(b)(1); see Satterfield v. Simon & Schuster,
Inc., 569 F.3d 946, 954 (9th Cir. 2009) (“[A] text message is
a ‘call’ within the TCPA.”).
Since its enactment, the definition of an ATDS has
remained the same: “equipment which has the capacity—(A)
to store or produce telephone numbers to be called, using a
random or sequential number generator; and (B) to dial such
numbers.” 47 U.S.C. § 227(a)(1). In contrast, the scope of
the prohibition section has evolved. In 2014, when Duguid
received messages from Facebook, the statute excepted two
types of calls: those “made for emergency purposes” and
those “made with the prior express consent of the called
party.” Id. § 227(b)(1)(A) (2010). Effective November 2,
2015, Congress added a third exception for calls “made
solely to collect a debt owed to or guaranteed by the United
States.” Bipartisan Budget Act of 2015, Pub. L. No. 114-74,
§ 301(a)(1)(A), 129 Stat. 584, 588; 47 U.S.C.
§ 227(b)(1)(A)(iii). It is this “debt-collection exception”
that Facebook contends is unconstitutional.
Two court rulings during this appeal have shifted the
TCPA playing field. First, in ACA International v. Federal
Communications Commission, the D.C. Circuit overturned
aspects of several Federal Communications Commission
(“FCC”) rulings construing the ATDS definition. 885 F.3d
687 (D.C. Cir. 2018). Shortly thereafter, in Marks v. Crunch
San Diego, LLC, we construed ACA International to wipe
the definitional slate clean, so we “beg[an] anew to consider
the definition of ATDS under the TCPA.” 904 F.3d 1041,
1049–50 (9th Cir. 2018). To clarify any ambiguity, we
6 DUGUID V. FACEBOOK
rearticulated the definition of an ATDS: “equipment which
has the capacity—(1) to store numbers to be called or (2) to
produce numbers to be called, using a random or sequential
number generator—and to dial such numbers
automatically.” Id. at 1053. That definition governs this
appeal.
II. Duguid’s Allegations 1
Duguid is not a Facebook customer and has never
consented to Facebook contacting his cell phone.
Nonetheless, beginning in approximately January 2014,
Facebook began sending Duguid sporadic text messages.
The messages alerted Duguid that an unrecognized browser
was attempting to access his (nonexistent) Facebook
account. Each message followed a common template:
“Your Facebook account was accessed [by/from]
at