The US Supreme Court in
Facebook, Inc. v. Duguid unanimously held on April 1 that the Telephone Consumer Protection Act’s definition of an autodialer is limited to systems that 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, finding in favor of Facebook based on the plain text of the statute. While this decision eliminates the need for businesses to obtain full prior express written consent before collecting phone numbers for text messages or phone calls from call centers (through equipment that does not have the capacity to store or to dial numbers with random or sequential number generators), Congress may amend the statute to bring that requirement back, and consent from those whom you are texting or calling is still advisable. In addition, the National Do Not Call Registry and more restrictive state laws continue to be fertile grounds for regulator
ENISA Publishes Threat Landscape Reports for
2020 On October 20, 2020, the European Union Agency for
Cybersecurity ( ENISA ) published a series of reports on the threat
landscape in 2020. The reports focused on, among other things,
malware, data breaches, ransomware attacks, information leakage,
and phishing attacks. The reports identified and evaluated the top
cybersecurity threats for the period of January 2019-April
2020.
ENISA Publishes Guidelines for Securing the IoT Supply
Chain On November 9, 2020, ENISA published guidelines on securing the supply
chain for the IoT. The guidelines address the entire lifespan of
IoT product development by offering security measures for each step
(i.e., requirements and design, end use delivery and maintenance,
Survey Fax Neither Unsolicited Advertisement nor Pretext Thursday, April 8, 2021
Does a “faxed invitation to participate in a market research survey in exchange for money constitute an ‘advertisement’ [or the pretext of one] under the Telephone Consumer Protection Act…and [its] implementing regulations…[?]” In a case of first impression in the courts of the Second Circuit, Judge Paul A. Crotty says “NO.”
In
Bruce E. Katz, M.D., P.C. d/b/a Juva Skin and Laser Center v. Focus Forward LLC, 2021 U.S. Dist. LEXIS 66861, Case No. 20-cv-2897 (PAC), United States District Court for the Southern District of New York, April 6, 2021, the plaintiff professional corporation received two faxes from the defendant, a firm that “conducts market research through surveys to collect information for its clients.” The faxes sought “participants for market studies” and invited the “recipients to share their opinions with Defendant in exchange for a $150 ‘honorar
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On April 1, 2021, the Supreme Court answered a question that has been at the heart of the recent wave of class-action litigation under the Telephone Consumer Protection Act of 1991 (TCPA) in its long-awaited ruling in Facebook, Inc. v. Duguid. Contrary to decisions from lower courts and expansive rulings from the Federal Communications Commission, the Court adopted a narrow (and caller-friendly) reading of the TCPA that appears to exclude most modern dialing technology (including predictive dialers) that targets known lists of customers from the definition of “automatic telephone dialing system” and instead appears to include only to seldom-used robocalling machines with the capacity to dial numbers randomly or sequentially.
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Companies engaging in telephone and text marketing will find some relief in the Supreme Court of the United States’ (“SCOTUS”) recent holding in Facebook, Inc. v. Duguid, which narrows the scope of the Telephone Consumer Protection Act of 1991 (“TCPA”). The decision limits the definition of “automatic telephone dialing system” (“ATDS”) to those devices that use a random or sequential number generator in all cases, whether storing or producing phone numbers to be called. While the clarification to the definition of ATDS will likely decrease the amount of class litigation relating to phone and text marketing and communication campaigns, companies should still pay close attention to its obligations under the Federal Communications Commission’s (“FCC”) “Do-Not-Call” (“DNC”) regulations, as compliance with these regulations are separate and distinct from, and in addition to, the obligations for A