Facebook’s Supreme Court decision v Duguid is here:
“To qualify as an ‘automatic telephone dialing system’ under the TCPA, a device must be able to either store a telephone number with a random or sequence number generator or generate a telephone number with a random or sequence number generator.”
Let’s go back. On Thursday, the Supreme Court ruled unanimously that Facebook did not violate the TCPA when it sent unsolicited text messages without consent. Why? Because in order to have violated the TCPA, the defendant must have used an “automatic telephone dialing system” or “ATDS”. The TCPA defines an ATDS as a device that “can store or produce telephone numbers to be called using a random or sequence number generator”. What qualifies as ATDS was the core issue of the case that we discussed earlier in this post when oral arguments were put down.
Duguid had argued that the TCPA was created to respond to consumer complaints and that its breadth should cover the use of stored numbers for automatic calls. Conversely, Facebook had argued that the TCPA only includes dialing systems that generate random or sequential phone numbers (which are now largely out of date and are rarely used). Since it had sent texts to phone numbers that were stored in a database, rather than phone numbers that were really randomly generated, Facebook argued that it did not use ATDS and therefore did not violate the TCPA. Ultimately, the Supreme Court approved Facebook.
The opinion is divided into two parts:
- A breakdown of the text. This gets very technical linguistically so I’ll save you a discussion (but feel free to access the decision at the link above if you’re interested).
- A review of the legal context. Justice Sotomayor points out that the TCPA is targeting a unique type of telemarketing device that is at risk of dialing and locking emergency calls. She also expresses concern that Duguid’s proposed interpretation would encompass virtually all modern cell phones, all of which have the ability to store numbers and dial those numbers.
What does this mean for the future of TCPA claims and litigation? Well, clearly, in all of those cases where the plaintiff only alleged that the defendant made a phone call or text message from lists of customer data, rather than through really random numbers, those allegations are pretty gutted. Given that most companies are not using the now narrowed definition of an ATDS, it is reasonable to assume that this area of really intense litigation will run out as the year progresses.
However, this does not mean that all companies are now completely safe and free to be really aggressive and / or careless with their marketing strategies. These bounty hunter attorneys are going nowhere, and there will always be claims aimed at securing quick settlements. In order to exclude any possibility of being accused of violating the TCPA, these practices are still recommended.
We will continue to observe how the lower courts deal with the application of the new Facebook precedent in their own cases and report on interesting developments or trends.