REGULATORY UPDATE >>
The Wireline Report
Supreme Court decision may reduce TCPA lawsuits By Mary J. Sisak, Partner, Blooston Law (mjs@bloostonlaw.com)
The Ninth Circuit, siding with Duguid, found that the TCPA applies to a notification system like Facebook’s that has the capacity to dial automatically stored numbers.
The Supreme Court’s recent opinion in Facebook v. Duguid may provide some relief to alarm companies from complaints or class action lawsuits for alleged violations of the Telephone Consumer Protection Act’s (TCPA’s) restrictions on the use of auto dialers when placing calls or text messages if the companies’ calling equipment does not have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator. In this case, the Supreme Court reversed the judgment of the Ninth Circuit Court of Appeals that an auto dialer need not be able to use a random or sequential generator to store numbers. Rather, it must only have the capacity to store numbers to be called and to dial such numbers automatically to be considered an automatic telephone dialing system under the TCPA. The Supreme Court has now rejected this expansive interpretation and made clear that to qualify as an automatic telephone [28]
dialing system under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator. In this case, Facebook, Inc. (Facebook) sent a text message to Duguid in connection with its login notification feature. The login notification feature sends users text messages when an attempt is made to access their Facebook account from an unknown device or browser. To opt in to this service, the user must provide and verify a cell phone number to which Facebook can send messages. Duguid complained about receiving such notifications and alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages. Facebook argued that the TCPA does not apply because its technology did not use a “random or sequential number generator.”
The Supreme Court reversed the Ninth Circuit’s decision and found that the TCPA auto dialer definition excludes equipment that does not use a random or sequential number generator. According to the Court, “an ‘automatic telephone dialing system’ is ‘a piece of equipment with the capacity both ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ and to dial those numbers. 47 U. S. C. §227(a)(1). The question before the Court is whether that definition encompasses equipment that can ‘store’ and dial telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’ It does not. To qualify as an ‘automatic telephone dialing system,’ a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” The Supreme Court remanded the case for further proceedings consistent with its opinion that “a necessary feature of an auto dialer 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.” Ten-Digit Dialing Required Beginning October 24, 2021 Beginning October 24, 2021, ten-digit dialing will be required in a number of new jurisdictions as a result of the FCC action designating “988” as the number to access the National Suicide Prevention and Mental Health Crisis Lifeline. As a result of the FCC’s action, Summer 2021 | TMA Dispatch
