On Thursday, April 1, 2021, the U.S. Supreme Court, in a unanimous decision – Facebook, Inc. v. Duguid, et al. – narrowed the types of telemarketing calls prohibited by the Telephone Consumer Protection Act of 1991 (the “TCPA”). Specifically, the Court ruled that the TCPA only covers calls and texts made to cell phones using an automated telephone dialing system that stores or produces telephone numbers with a random or sequential number generator. The statute also prohibits calls using “an artificial or prerecorded voice,” a/k/a “robocalls,” unless the calls fall into certain exceptions, as well as calls made to those on the National Do-Not-Call Registry. This ruling is expected to significantly reduce the amount of class actions and other litigation that has emerged under the TCPA in recent years.
So, how did this case come about? Facebook has an optional security feature that sends its users “login notification” text messages when someone attempts to log into their Facebook account from an unknown device. In 2014, Noah Duguid, who didn’t have a Facebook account, received several login notification text messages from Facebook alerting him that someone had tried to access the Facebook account associated with his telephone number (It is believed that he may have had a recycled cell phone number previously linked to a Facebook account).
Unable to stop the text message notifications, Duguid brought a class action against Facebook alleging that it violated the TCPA by maintaining a database that stored telephone numbers and programming its equipment to send automated text messages to those numbers each time the associated accounts were accessed by an unrecognized device or web browser. Facebook moved to dismiss the suit on grounds that Duguid failed to allege that Facebook used an autodialer that sent text messages to numbers that were randomly or sequentially generated. Instead, Facebook sent targeted messages to numbers linked to specific user accounts. The District Court agreed with Facebook and dismissed the case with prejudice; however, the U.S. Court of Appeals for the Ninth Circuit reversed the decision. The Ninth Circuit held that Duguid had stated a viable claim under the TCPA by alleging that Facebook’s notification system automatically dialed stored numbers. The Circuit court opined that an autodialer need not use a random or sequential number generator to store numbers to violate the act; it only needed to be able to store numbers to be called and to dial those numbers automatically.
On appeal, the U.S. Supreme Court reversed the Ninth Circuit’s decision holding that the TCPA’s definition of an automated telephone dialer system excludes equipment that doesn’t use a random or sequential number generator.
The Impact of the Court’s Narrow Definition of an Automated Telephone Dialing System on Future TCPA claims
The Court’s decision in Facebook, Inc. v. Duguid is likely to have a major effect on the future of telemarketing because it means that the TCPA, as it is now written, doesn’t ban the use of predictive dialing technology to call or text targeted leads or customers (as opposed to calling random sequential numbers), so long as an artificial or pre-recorded voice isn’t used and so long as calls are not made to those on the National Do-Not-Call Registry. Prior to this decision, courts interpreted the TCPA to ban the use of this technology to call consumers without getting their express written consent. Under this more narrow interpretation of the statute, we can expect to see many pending lawsuits settle or get dismissed. We can also expect to see fewer lawsuits filed.
Don’t allow the Court’s ruling to lull you into a sense of complacency, however. Congress will, most likely, want to move quickly to clean up this language, at which time this window will close.
If you have any questions concerning whether you’re in compliance with the TCPA, contact us for a consultation with an experienced TCPA attorney.
- Robocalls, AI, & The FCC - April 2, 2024
- The 1:1 Rule - March 18, 2024
- The Role of Consent in Telemarketing: Obtaining and Documenting - February 15, 2024
