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Breaking News – Facebook v. Duguid: Is this the End of TCPA Litigation?


The Facebook v. Duguid Supreme Court decision is here:

“To qualify as an ‘automatic telephone dialing system’ under the 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.”

Let’s back up. On Thursday, the Supreme Court unanimously ruled Facebook did not violate the TCPA when it sent unsolicited text messages without consent. Why? Because in order to have violated the TCPA, the defendant must have used an “automatic telephone dialing system” or “ATDS.” The TCPA defines an ATDS as equipment that can “store or produce telephone numbers to be called, using a random or sequential number generator.” What qualifies as an ATDS was the core issue of the case, which we discussed back in this post when oral arguments went down.

Duguid had argued the TCPA was enacted to respond to consumer complaints and its breadth was intended to cover any use of stored numbers to make automatic calls. Conversely, Facebook had argued the TCPA only encompassed dialing systems that generate random or sequential phone numbers (which are now largely obsolete and rarely used). Because it had sent texts to phone numbers that were stored in a database, not phone numbers that were truly randomly generated, Facebook argued it hadn’t used an ATDS and therefore, hadn’t violated the TCPA. Ultimately, the Supreme Court agreed with Facebook.

The opinion is broken down into two parts:

  1. A breakdown of the text. This gets really linguistically technical so I’ll spare you a discussion (but feel free to access the decision at the link above if you’re interested).
  2. A review of the statutory context. Justice Sotomayor points out the TCPA was designed to target a unique type of telemarketing equipment that risked dialing and tying up emergency lines. She also expresses concern that Duguid’s proposed interpretation would encompass virtually all modern cell phones, which all have the capacity to store numbers, and dial those numbers.
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So what does this mean for the future of TCPA claims and litigation? Well, clearly, in all the cases where the plaintiff only asserted the defendant made phone calls or sent text messages from lists of customer data, rather than through truly randomly generated numbers, those claims are pretty much gutted. Given that most businesses don’t use the now-narrowed definition of an ATDS, I think it’s safe to assume this area of really intense litigation is going to phase out over the year.

However – this does not mean all businesses are now completely safe and free to get really aggressive and/or careless with their marketing strategies. Those bounty hunter attorneys aren’t going anywhere, and claims aimed at securing quick settlements are always going to exist. To foreclose any possibility of being accused of violating the TCPA, these practices are still recommended.

We’ll continue to monitor as the lower courts grapple with how to apply the new Facebook precedent in their own cases, and we’ll report on any interesting developments or trends.

The post Breaking News – Facebook v. Duguid: Is this the End of TCPA Litigation? appeared first on Harris Bricken.


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