Unless you completely disconnected from the internet this week, you’ve likely been inundated with dozens of blogs about the U.S. Supreme Court’s 9-0 holding in Facebook, Inc. v. Duguid, 19-511 Facebook, Inc. v. Duguid (04/01/2021) (supremecourt.gov). In this case, the U.S. Supreme Court held:

To qualify as an “automatic telephone dialing system” under the Telephone Consumer Protection Act (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. Pp. 4–12. Emphasis added.

Although the facts of this case involved automated text messages sent to individuals by Facebook, the decision extends to automated calls placed to a mobile phone without the prior express consent of the of the called/texted party.

Arguing that Facebook violated the TCPA by maintaining a database that stored phone numbers and by programming its equipment to send automated text messages, the plaintiff’s case went up in smoke. This is because the Justices unanimously agreed with Facebook’s argument that the TCPA does not apply because the technology Facebook used to text Duguid did not use a “random or sequential number generator” and was therefore not an Automatic Telephone Dialing System (ATDS).

The practical effect of this 9-0 Supreme Court decision is to say that, so long as you are calling using a device without random or sequential number capacity, you Do Not Require the Called/Texted Party’s Prior Express Consent!

To be clear, for purposes of TCPA compliance, the calling or texting party no longer needs prior express consent to contact consumers by way of their mobile phones if the device used does not have random or sequential number capacity.

9 Most Frequently Asked Questions about Facebook v. Duguid

1. Is my dialer an ATDS?

The short answer is, probably not. Contact management companies, regardless of the widget sold, have not produced predictive dialers with random or sequential number capacity for more than 20 years. A simple inquiry to your contact management provider should clear this issue up for you.

2. Is my dialer compliant?

The question about TCPA compliance never has been whether a particular dialer or device is “compliant” unto itself. The question has always been whether prior express consent must be obtained before using my particular contact platform. In light of the Court’s interpretation of an ATDS, I highly doubt any calling or texting party even has an ATDS, much less requires (what has come to be known as) a manual contact system.

3. Do I still need prior express consent from the called or texted party for any reason?

Yes. The TCPA still requires prior express consent to contact a consumer by way of their mobile phone in four instances:

• When using an ATDS (if for some reason you happen to have one) to place a call to a mobile phone;
• When using an ATDS (if for some reason you happen to have one) to send a text to a mobile phone;
• When leaving a prerecorded message on a mobile phone; or
• When using an artificial voice to contact the consumer on their mobile phone.

As the Facebook Court makes clear, a calling or texting party does not need prior express consent to use a contact system that does not have the capacity to use a random or sequential number generator to store or produce numbers and to dial such numbers. This means the first two reasons for prior express consent fall off the list for most callers. However, the remaining two requirements remain intact for callers who use an artificial voice or prerecorded messages to contact consumers by way of their mobile phones.

4. Do we need prior express consent if we send a list of mobile numbers to our contact management vendor?

Probably not. You will only need prior express consent in this instance if their system has the capacity to store or produce a telephone number using a random or sequential number generator.

5. Do we still need manual clicker agents?

Probably not. Unless the calling or texting platform you use to contact consumers on their mobile phones has the capacity to store or produce telephone numbers using a random or sequential number generator, you should not have any reason to use clicker agents to call or text consumers using their mobile phone number.

6. Are you sure we need prior express consent to use an artificial voice or leave a prerecorded message on a consumer’s mobile phone? I thought that was only true if we used an autodialer to launch the voice call or leave the prerecorded message.

Yes, I am sure. The TCPA led many people to believe they needed prior express consent to use an artificial voice or leave a prerecorded message only if their technology for communicating with consumers using an artificial voice or leaving a prerecorded message met the ATDS definition. But this was never the case. You do need prior express consent to leave a prerecorded message on a consumer’s mobile phone voice mail even regardless of the method used to launch the message. (e.g., the agent manually launched the prerecorded message).

7. Can we abandon call and text frequency restrictions?

No. State call and text frequency restrictions remain intact. Even if you determine you are not placing calls or sending text messages to consumers on their mobile phone using an ATDS, you must still comply with state law restrictions on calls and texts.

Also, keep in mind that the Facebook Court did not change the Federal Communication Commission’s position that texts are calls under the TCPA. This means that callers and texters who ramp up the number of calls or texts they place or send to a consumer’s mobile phone for debt-collection purposes may still find themselves at the wrong end of a Federal or state Unfair, Deceptive or Abusive Practices Act (UDAAP) claim or a Fair Debt Collection Practices Act (FDCPA) claim.

8. Does the Supreme Court’s decision in Facebook v. Duguid mean the CFPB’s new Regulation F call and text provisions are now null and void?

Regulation F’s requirements that pertain to the method you use to obtain a mobile number in connection with the collection of a particular debt will only support a safe harbor defense if you adhere to the new Regulation F requirements for obtaining a mobile number. This means even though you do not use a ATDS to launch text messages to consumers about a debt, under Regulation F you will only enjoy safe harbor protection from FDCPA liability if you obtain the mobile number you use to communicate with consumers by text about a debt in accordance with Section 1006.6 (d)(3)(i) (5) Procedures for telephone numbers for text messages.

9. Do you think Congress will quickly fix the TCPA to make clear prior express consent is required as a condition of placing calls to mobile phones and send text messages?

There are lots of disparate views on this question. Personally, I think Congress will take a pass on the hard work—just as it took a pass at the hard work required to curtail what is truly robo calling with its passage of the TRACED Act. In other words, I would expect Congress to pass a law directing the FCC to fix this through regulation. I could be wrong. But that is my prediction.

Bottom Line: A Win for the ARM Industry

TCPA compliance will remain a challenge even in light of the Supreme Court’s decision in Facebook v. Duguid. But as I am sure you will agree, the Facebook Court’s Opinion goes a very long way towards vindicating well-intentioned callers and texters who had no intention of interrupting consumers with unwarranted calls and texts outside of a direct or indirect business relationship.

More About the Facebook, Inc. v. Duguid Ruling