US Supreme Court limits what dialing systems result in TCPA liability for phone calls and texting

2021 case review: Facebook, Inc. v. Duguid

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The US Supreme Court issued a unanimous decision in Facebook, Inc. v. Duguid, holding that to be considered an “automatic telephone dialing system” (or “autodialer”) for purposes of the Telephone Consumer Protection Act (“TCPA”), the phone number used by the device to make the call must have been created by a random or sequential number generator, so that the number was either stored by the system, or generated by the system prior to dialing. The Supreme Court overturned the Ninth Circuit’s holding that a device was an autodialer if it “store[d] numbers to be called” and “dial[ed] such numbers automatically,” resolving a circuit split on the scope of the term.

The TCPA, first enacted in 1991, sought to curb telemarketing calls by limiting the use of autodialers among certain other technology. The use of autodialers had resulted in a dramatic increase in marketing calls, placing burdens on critical infrastructure such as hospitals. Plaintiff alleged that defendant Facebook used an autodialer to send him text messages without the consent required for communications to cell phones. The system used an automated response to message a customer-provided number if someone made an attempt to access the customer’s Facebook account. Mr. Duguid alleged that he did not have a Facebook account and therefore never granted consent.

The Court explained the application of its narrow definition by noting that though Congress 30 years ago “was broadly concerned about intrusive telemarketing practices … [this] does not mean it adopted a broad autodialer definition.” The Court also explained that even with the narrow definition the TCPA will continue to restrict artificial and prerecorded voice calls. The TCPA now does not ban the use of predictive dialing technology, so long as an artificial or pre-recorded voice is avoided.