On April 1, 2021, the Supreme Court issued its 9 – 0 decision in the highly anticipated case of Facebook v. Duguid. In a landmark ruling, the Court concluded that the TCPA automatic telephone dialing system (ATDS) statutory definition controls - for the TCPA to be in effect the dialing equipment must have the capacity to: a) store a number using a random or sequential number generator, or b) produce a number using a random or sequential number generator.
Though great news for all in the ARM industry, this conclusion does not affect the TCPA’s related prohibition of the use of pre-recorded or artificial voice messages when calling cell phones unless there is prior express consent.
In Facebook, the Supreme Court was called upon to answer a question that has caused a split between several federal appeal courts: does dialing equipment that does not use a random or sequential number generator still qualify as an ATDS under the TCPA. Based on prior orders from the Federal Communications Commission, appellate courts in the 2nd, 6th & 9th Circuits previously concluded that a dialing system could still be an ATDS simply by dialing from a stored list of numbers.
The now historic effect of these decisions was that predictive dialers used throughout the ARM industry could not be used to call cellular telephones unless the caller first had consent, at the risk of getting sued in a TCPA class action with statutory damages of up to $1,500 for each call.
But beware before dusting off the predictive dialer. It is likely that even a divided Congress will pass legislation that will amend the TCPA statutory definition of an ATDS to broaden the prohibition more in line with prior FCC orders. With the near-universal loathing of spam calls and the number of complaints made to the CFPB and FCC regarding robocalls, an amendment to shield consumers from intrusive autodialing calls is predicted to garner bipartisan support. When this reality is combined with the forthcoming CFPB Reg. F’s 7-in-7 rule and the continued prohibition on the use of pre-recorded or artificial voice messages, controls are still needed when calling cell phones.
We are here to help if you would like some help navigating these unsettled waters.
