Over the last several days, the private sector has 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.

 

Government Representatives’ 10 Most Frequently Asked Questions about Facebook v. Duguid

 

1. I didn’t think the Telephone Consumer Protection Act even applied to calls and texts we place to our constituents.

Yes, the TCPA absolutely applies to all levels of government. Several years ago, Congress passed a budget reconciliation Act amendment exempting the Federal government and anyone collecting money owed to the Federal government from the TCPA. However, the exemption was challenged in court and deemed unconstitutional as a violation of the free speech clause of the constitution.  

The law is clear. No party is exempt from the call, text, artificial voice, and prerecorded message restrictions of the TCPA.

 

2. 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. None of Ontario Systems’ contact management platforms have any capacity to generate random or sequential phone numbers and to dial such numbers. A simple inquiry to your contact management provider should clear this issue up for you.

 

3. Is my dialer compliant?

The question about TCPA compliance has never 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 Facebook 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.

 

4. 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 constituent 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 constituents or defendants by way of their mobile phones, including government callers.

 

5. 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.

 

6. Do we still need manual clicker agents?

Probably not. Unless the calling or texting platform you use to contact constituents or defendants 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 individuals using their mobile phone number.

 

7. Are you sure we need prior express consent to use an artificial voice or leave a prerecorded message on a constituent’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 constituents 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 constituent’s or defendant’s mobile phone voice mail even if the message is left manually (i.e., the agent launched the prerecorded message).

 

8. 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 constituents or defendants on their mobile 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 callers and texters who ramp up the number of calls or texts they place or send to an individual’s mobile phone for debt-collection purposes on behalf of a governmental body 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.

 

9. Our office does retain third-party debt collectors to collect fines, money, penalties, tickets, etc. 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?

Absolutely not. Third-party debt collectors that collect debt owed to the Federal government or state and local governments must adhere to the new Regulation F effective November 30, 2021. The new rules limiting the number of attempts to communicate using a voice mail remain intact, and messages left on a mobile phone in an attempt to communicate must still be limited to seven attempts in seven consecutive days. Finally, even though text messages are not subject to the seven attempts in seven days rule, excessive texting can still support a harassment claim under the FDCPA and Regulation F.

Keep in mind that Regulation F’s requirements pertaining to the method the debt collector uses to obtain a mobile number in connection with the collection of a particular government debt will only support a safe harbor defense if the collector adheres to the new Regulation F requirements for obtaining a mobile number. This means even though the collector does not use an ATDS to launch text messages to individuals about a debt, under Regulation F the collector will only enjoy safe harbor protection from FDCPA liability if the collector obtains the mobile number it uses to communicate with your constituents and defendants by text about a debt in accordance with Section 1006.6 (d)(3)(i) (5) Procedures for telephone numbers for text messages.

 

10. 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: SCOTUS Has Made TCPA Compliance Easier for Government

TCPA compliance will remain a challenge for Federal, state and local governmental bodies 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 government representatives and their third-party debt collectors who had no intention of interrupting their constituents or defendants with unwarranted calls and texts absent a court order, issuance of a ticket, fine, or any other monetary obligation owed to the government.

 

More About the Facebook, Inc. v. Duguid Ruling