Posted by Chris Alarie on Thu, 04/01/2021 - 08:53
This morning, the Supreme Court handed down their highly anticipated ruling in Facebook v. Duguid. Upending Telephone Consumer Protection Act (TCPA) enforcement as we know it, the court finally set a nationwide precedent for how to interpret the law’s definition of automatic telephone dialing system (ATDS). As many observers anticipated after the court heard oral arguments in December of last year, SCOTUS has adopted a more restrictive, statutory definition of ATDS. In the Court’s unanimous opinion, Justice Sonia Sotomayor writes, “We hold that a necessary feature of an autodialer under [the TCPA] is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Essentially, this means that the only dialers that are subject to the TCPA's restrictions are those that actually use random or sequential number generation in order to store or dial phone numbers.
The text of the TCPA defines ATDS as “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.” Unfortunately, this definition is not particularly clear. Does the phrase “using a random or sequential number generator” apply to both “store” and “produce” or only to “store”? The grammatical uncertainty of this written definition eventually led to a variety of different interpretations of what the requirements are for a particular kind of dialing technology to be considered an autodialer.
In 2015, the Federal Communications Commission (FCC) interpreted this definition in such broad terms that the D.C. Circuit Court determined, in its ACA International v. FCC decision, that it would render all smartphones as autodialers. In the wake of the D.C. Circuit invalidating the FCC’s definition of ATDS, different circuit courts interpreted the definition in wildly different ways. There was no consistent, nationwide standard for what technology actually fit the TCPA’s ATDS definition and was, thus, subject to the law’s restrictions on the use of autodialers. In the Eleventh Circuit, virtually no modern dialing technology was considered an ATDS while, in the Ninth Circuit, the majority of modern dialing technology was. This had become a clearly untenable situation and the Supreme Court’s ruling today in Facebook finally resolves that issue.
This case was granted certification in the immediate wake of last summer’s somewhat muted ruling in Barr v. American Association of Political Consultants, another TCPA case. While the Barr decision went out of its way to mostly maintain the status quo with regards to TCPA litigation, Facebook was always going to be a more significant ruling due to its focus on the ATDS issue. Sure enough, by adopting the narrow definition, the Supreme Court has essentially freed the vast majority of modern dialing technology from the TCPA’s ATDS restrictions. The long term consequences of this decision are hard to predict—although some possibilities are Congress drafting new federal legislation, an increased focus on the National Do Not Call (DNC) Registry, or an increased amount of litigation and regulatory enforcement under the various state-level telemarketing regulations—what is clear is that the TCPA as we have known it is no more.
For further analysis of this massively significant decision and its consequences, please watch this pre-recorded screencast:
Supreme Court Decides HUGE Facebook ATDS Case
How did SCOTUS rule in Facebook v. Duguid?
The Supreme Court ruled in favor of Facebook, determining that the text messages sent to Noah Duguid did not violate the TCPA. They accepted Facebook's argument that the device used to send the messages does not fit the TCPA's definition of an ATDS.
Does the TCPA still prevent the use of autodialers?
All of the TCPA's restrictions against the use of autodialers are still standing. What this ruling likely changes are what kinds of dialing technology meet the definition of ATDS. The only dialers that meet this standard are ones that produce or dial numbers randomly or sequentially, as had been the case for the first several years of the TCPA's existence. Most modern dialers likely will not be considered autodialers.
Is the TCPA dead?
No. The law has many facets unrelated to the restrictions on the use of autodialers. And, as mentioned above, the ATDS restrictions do still exist. They are just significantly less likely to be used to form the basis of lawsuits and class actions.
Can telemarketers just call anybody now?
No. In addition to the TCPA, there are numerous telemarketing regulations such as the Do Not Call (DNC) list and many state-level laws. And, as explained in the previous answer, the TCPA still lives, albeit with a likely different role in telemarketing regulations going forward.
What happens next?
It is impossible to say. For an opportunity to participate in a discussion on this, and other consequences of this ruling, register for our webinar.