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Facebook Ruling and the TCPA: Autodialer Defined, Robocall Restrictions Unchanged

The Supreme Court’s Facebook v. Duguid decision (released April 1, 2021) has generated a rash of predictions pointing towards a coming surge in robocalls. An easy internet search quickly identifies a number of articles with splashy headlines, seemingly declaring that it will soon be open season for robocalling. This argument was also promulgated by Duguid against Facebook in its case, indicating that adopting Facebook’s position would unleash a torrent of robocalls.

The facts inform otherwise. The SCOTUS ruling was limited to addressing only the interpretation of the TCPA’s autodialer definition (finding that today’s dialers indeed do not meet the “autodialer” scope of using random or sequential number generators to conduct their business).

The decision had nothing to do with the use and delivery of robocalls. In fact, the Supreme Court’s opinion specifically recognized that robocalls involve automated calls that play a prerecorded message:

Advances in automated technology made it feasible for companies to execute large-scale telemarketing campaigns at a fraction of the prior cost, dramatically increasing customer contacts. Infa­mously, the development of “robocall” technology allowed companies to make calls using artificial or prerecorded voices, obviating the need for live human callers altogether. (Facebook v. Duguid, No. 19-511, slip op. at 2, April 1, 2021.)

Additionally, the TCPA has separate prohibitions regarding the use of an autodialer and originating calls that play a pre-recorded message. Facebook only addressed the scope of the autodialer prohibition, and did not address, nor alter, the prohibition on calls that use prerecords – ie, robocalls. This was explicitly stated by the Court:

To begin with, Duguid greatly overstates the effects of ac­cepting Facebook’s interpretation. The statute separately prohibits calls using “an artificial or prerecorded voice” to various types of phone lines, including home phones and cell phones, unless an exception applies. See 47 U. S. C. §§227(b)(1)(A) and (B). Our decision does not affect that prohibition. (Id., slip op. at 12.)

And there you have it. It is really that straightforward. Facebook did nothing to loosen the restraints on robocalling. Therefore, it is an irresponsible headline – albeit an eye-catching one – to allege the Facebook decision will open the floodgates and drown the public in a rush of robocalls.


 

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Karl Koster is Noble’s in-house IP Counsel and regulatory compliance expert. Karl is recognized as an authority on contact center compliance and serves on the board of PACE. His blogs and webinars cover the range of compliance, from Shaken/Stir, TCPA, Wireless calling, and robocalling to FCC, CFPB, collections regulations, and more.

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