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After wave of lawsuits, court clarifies definition of ‘automated telephone dialing system’
Restaurants no longer have to worry about violating the Telephone Consumer Protection Act, or TCPA, if they send a text message to a mobile phone number in their customer database for legitimate reasons.
The Supreme Court last week ruled unanimously to clarify what constitutes an automatic telephone dialing system, following a raft of class-action lawsuits against businesses, including several restaurants, that sent text messages using automated technology. The TCPA, which was created before the widespread use of mobile phones, was designed to prevent so-called “robocalls” from dialing emergency numbers or from tying up business lines.
Wednesday, April 7, 2021
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.
Supreme Court adopts narrow autodialer definition
We have blogged several times before about the Telephone Consumer Protection Act (TCPA) and what is an “autodialer” under the rules and on April 1, 2021 the Supreme Court provided some clarity. As background, in 2015, the Federal Communications Commission (FCC) issued a TCPA Order that, in part, broadly defined what technology might constitute an “autodialer.” This is important because calls and texts made to a cell phone using an autodialer would fall within the scope of the requirement to receive either prior express consent or prior express written consent to call or text a consumer. Under this past Order, even a system with the “potential” to make autodialed calls seemed to potentially fall within the rule’s consent requirements. NAFCU members can find more background on this here.
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On April 1, 2021, the Supreme Court held in a 9-0 decision that an “automatic telephone dialing system” is a device that has 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.
As a quick refresher: the Telephone Consumer Protection Act (TCPA) restricts certain calls made by an “autodialer,” which the TCPA defines as “equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” The Opinion, authored by Justice Sotomayor, states, “the clause ‘using a random or sequential number generator’ modifies both verbs that precede it (‘store’ and ‘produce’) and therefore a system which neither stores nor produces numbers ‘using a random or sequential number generator’ is not an autodialer.” Th