Call Center Management Featured Article
SCOTUS Decision on TCPA Doesn't Let Marketers Off the Hook
In an effort to address the ever-growing number of telephone marketing calls, Congress enacted the Telephone Consumer Protection Act (TCPA) in 1991. The TCPA, as it was written at the time, restricts the making of telemarketing calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages. The rules apply to common carriers as well as to other marketers.
Confusion over some of the definitions in the TCPA led to a demand from companies to request further clarification. In 2012, the TCPA was amended to require telemarketers to obtain prior express written consent from consumers before robocalling them, to no longer allow telemarketers to use an "established business relationship" to avoid getting consent from consumers when calling their home phones, and to require telemarketers to provide an automated, interactive "opt-out" mechanism during each robocall so consumers can immediately tell the telemarketer to stop calling.
In April of this year, the Supreme Court of the United States (SCOTUS) rendered its long-awaited decision in the matter of Facebook (News - Alert) v Duguid. By way of background, the case was filed by Noah Duguid, who alleged that Facebook sent him a text login notification that was in clear violation of the TCPA by using equipment that drew telephone numbers from a stored list, essentially making the system an auto dialer. Facebook denied that it had engaged in TCPA violation as the list it used comprised telephone numbers provided by its customers rather than numbers generated randomly or sequentially and that, therefore, an autodialer was not used.
The District Court for the Northern District of California sided with Facebook, but the Ninth Circuit Court of Appeals overturned that decision in favor of Duguid. Facebook appealed to the Supreme Court, which overturned the Ninth Circuit, ruling that “We hold that a necessary feature of an autodialer under §227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Since Facebook did not store numbers nor produce numbers using a random or sequential number generator, it did not qualify as an ATDS, according to SCOTUS.
In a recent analysis of the decision, Ray Horak, writing for Telecom Reseller, noted that there is enough ambiguity in the SCOTUS decision that companies engaged in automatic communications with customers should take care they are not violating the TCPA
“In the context of the Facebook v Duguid decision, considering all the issues it addressed and didn’t, clarified and confused, honest and conscientious actors have to be freshly concerned about TCPA compliance,” wrote Horak. “That means checking all the boxes, doubling down on all the right things, and identifying and plugging all the holes in your call center operations.”
Edited by Luke Bellos