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Six takeaways from the SCOTUS Facebook TCPA ATDS decision

Well friends, it never fails. I’m trying to sneak a vacation and a major TCPA decision falls. It happened with ACA International. It happened with the Omnibus. And it happened with Facebook.

Maybe I should stop taking so many vacations?

My inbox – which was already full after being away for 3 days – is absolutely overflowing with requests for my thoughts. So here they are – the top 6 things you need to know NOW.

1. Facebook is a huge win for the appellants and a complete vindication of everything TCPA defense attorneys have been saying for years

The Supreme Court decided 9-0–9-0that the TCPA means what it says.

Only devices that have the ability to actually memorize or dial using a random or sequential number generator are covered by the law. Period.

This should not be a surprising result since that is precisely what the law says. Nevertheless, as the history books now read, the FCC significantly expanded the scope of the TCPA in 2003 and again in 2012 and 2015 by creatively interpreting the law’s narrow language.

This opened the door to similar creative interpretations adopted by some courts and ultimately by three circuit appeals courts.

This expansion was highly touted by defense attorneys and TCPA commentators — primarily me — as being entirely divorced from the reality of the language of the statute and the intent of Congress when drafting the statute.

Well, today the Supreme Court of the United States delivered its verdict and resoundingly accepted. Only devices capable of storing or dialing numbers using a random or sequential number generator qualify as ATDS:

In sum, the Congressional definition of an automatic dialer requires that in all cases, whether storing or generating numbers to be dialed, the equipment in question must use a random or sequential number generator. This definition excludes equipment such as Facebook’s login notification system, which does not use such technology..”

And that’s great news.

But keep reading, because it might not be as clear as it seems.

2. Yes, it means you can (probably) now use automated technology to call cell phones without consent – but here’s why you shouldn’t go crazy

Here’s the punchline you’ve all been waiting for.

Yes, Facebook means you can probably use most predictive dialers to call cell phones without consent. Yes, even for marketing purposes. Yes, even cold call solicitations to numbers not on the DNC list. Yes, that changes everything.

But slow down.

To remember:

  1. Providing a positive customer experience and respecting consumer contact preferences is good for business and your reputation;

  2. If the industry goes crazy, Congress – and even worse – the states will write new laws to combat industry practices and it will get really bad from a regulatory standpoint;

  3. Critical call limits are still in place in some contexts (such as debt collection);

  4. There are laws other than the TCPA that are currently in effect that may apply to you;

  5. There is always a risk that the TCPA’s definition of ATDS will be interpreted broadly by some courts (see “capacity” section below);

  6. Operators are empowered to block calls that they think their network users will not want. If you launch your dialer, you risk having your calls blocked, even those that have been consented to.

3. Human intervention is no longer a test of using the ATDS

As I have written over and over again, the “human intervention” test is simply too vague to be of much use to callers. (I often characterize it as existing “only in the eye of the beholder”. )

The Supreme Court agrees and EXPRESSLY declined to adopt any “human intervention” test when evaluating the TCPA’s ATDS definition.

As the Supreme Court put it in fn 6: “[A]All devices require human intervention, whether programming a cell phone to automatically respond to received text messages in “do not disturb” mode or commanding a computer program to generate and dial random phone. We refuse to interpret the TCPA as requiring such a difficult drawing exercise on the degree of automation, it is too much.

Boom. The entire “human intervention” framework has gone out the window.

Notably, the phrase “human intervention” does not appear in the TCPA and only became part of the TCPA lexicon following the massive expansion of the ATDS definition by the FCC in its 2015 Ominibus decision. In that decision, the Board interpreted the term “capacity” in the TCPA to include future state the functionality of a system to assess whether it meets the ATDS definition of the TCPA in the present.

In response to the FCC’s time travel ATDS approach, the courts have pushed back and fabricated a rule that “human intervention” in the present could thwart ATDS functionality in the future, which hasn’t never made much sense. But… TCPAWorld.

In any case, Facebook seems to put the “human intervention” piece completely to bed. Now the only question is whether a system has the “capability” to perform the statutory function.

4. How Courts of Appeal Approach “Capacity” Following Facebook will be critical

Yes, Facebook is a fantastic decision and a great victory for the TCPA defendants and appellants.

But it’s not quite perfect.

A perfect decision would have been one in which the court also clarified that the system must actually USE the random or sequential number generator functionality to make disputed calls in order to trigger the TCPA.

The Supreme Court did not quite go there. Instead, he got a little sloppy with his language, unfortunately. Specifically, although the notice addresses the issue of “capacity”, it changes scope to focus on “use”.

Again, take a look at page 7, for example: “In sum, the Congressional definition of an autodialer requires that in all cases, whether storing or producing numbers to call, the equipment in question must use a random or sequential number generator. This definition excludes equipment such as Facebook’s login notification system, which does not Do not use such technology. (Italics added)

Read in a way, it’s FANTASTIC because the Supreme Court rules that an ATDS must currently use an R&S generator to trigger the TCPA.

But there’s no analysis in the review of what the word “capacity” means and how it relates to the features it identifies. And that could be a serious problem.

As early as 2009, for example, the Ninth Circuit Court of Appeals ruled that it was the ability of the system to perform statutory functionality – not use of these features – which triggers the TCPA. To see Satterfield vs. Simon & Schuster, Inc.., 569 F. 3d 946 (9th Cir. 2009). This ruling has been repeatedly followed by district courts across the country. (It’s this thread while the FCC fired to unravel the TCPA defense in 2015 to begin with.)

By failing to address “capacity” squarely, the Supreme Court leaves this same thread hanging. And while it’s almost unthinkable that TCPA ATDS case law has advanced so far to fall back into the quagmire of district courts assessing a system’s “capability,” that outcome appears to be on the table.

It will therefore be essential that the courts read Facebook as requiring the effective use of R&S technology. The language is there, even if the analysis is not there.

5. TCPA is still dangerous – Restrictions on pre-recorded calls and DNC claims are still there

It’s important that readers don’t get too carried away with today’s good news.

As noted, there is still a dangling thread here to be wary of. And it is the fate of all knitting to meet its demise through imprecision.

But more broadly, the TCPA covers more than ATDS calls. please please please do DON’T MAKE THE MISTAKE to think that the TCPA is dead.

While many will read Facebook as the “death” of the TCPA or TCPA litigation, this is more of a change than an end. The Supreme Court was very, very clear that the provisions of the TCPA covering pre-recorded and artificial voice calls are still in effect. TCPA limitations on calls to DNC National Registry numbers are also in effect.

Don’t let anyone tell you that TCPA compliance doesn’t matter anymore.

6. Text messages are still calls under the TCPA – for now

Many of us hoped the Supreme Court could undo the bizarre reality that text messages are somehow “calls” under the TCPA despite the fact that: i) text messages are information services not telecommunications under FCC rulings; and ii) SMS technology did not even exist in 1991.

While Judge Thomas poked and prodded a bit on this issue during oral argument, it turned out to be misdirected. At Fn 2, the decision provides that “[n]either party disputes that the TCPA prohibition also extends to sending unsolicited text messages… We therefore assume that it does so without investigating or addressing this issue.

The Supreme Court therefore refuses to rule on the issue, which means that it could still be in play in some jurisdictions.

And now the critical question – Does your system have the capability to store or output numbers using a random or sequential number generator?

The answer to this question alone can determine whether or not you need consent to contact cell phones under the TCPA. If you don’t know the answer to this question, you should act as if Facebook was never determined until you got the answer. Don’t guess this one. Do the analysis and do it well.

© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XI, Number 91