United States: The eighth circuit confirms the narrow definition of the TCPA autodialer
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Just over a year ago, the United States Supreme Court changed the world of telemarketing forever with its opinion in Facebook, Inc. v. Duguid. In Facebook, the Court settled a years-long disagreement and clarified just how narrow the Telephone Consumer Protection Act’s (“TCPA”) automatic dialer restriction really is. The restriction only applies when the dialing equipment generates the telephone numbers to be called using a random or sequential number generator. Since Facebook, courts have almost uniformly held that the use of a number generator is a necessary feature to meet the definition of a TCPA autodialer. Recently, the Eighth Circuit Court of Appeals became the second appeals court to uphold this definition in a case titled Beal vs. Outfield Brew House, LLC.
How the Beal decision affect the definition of the TCPA auto-dialler?
Outfield Brew House operates bars in Missouri. They collect the phone numbers of customers and potential customers to whom they send marketing SMS. These numbers are manually entered by staff into a telemarketing database. When Outfield sent his bulk text messages, he did so by using software to filter his contact list and then send text messages to people on that list. The software itself is designed to narrow the list based on the selected filters, randomly determine the numbering order, and then distribute the messages.
Beal received one of these marketing text messages and sued Outfield for violating the TCPA autodialer. Outfield sought summary judgment in the trial court, arguing that the text messaging software he used: (1) required a person to manually enter phone numbers; and (2) lacked random number generator capability. The trial court agreed and entered judgment for Outfield.
On appeal, the Eighth Circuit upheld. The appeals court acknowledged that Congress enacted the TCPA to combat telemarketing calls made using a random or sequential digit generator. Outfield argued that because its text messaging software only used manually entered phone numbers, the TCPA autodialer restriction would therefore not apply. In response, Beal countered that the randomization of the numbering order is sufficient to bring the claim within the scope of the TCPA. The Eighth Circuit agreed with Outfield, believing that the Facebook The ruling did not expand the definition of autodialer use to include manually entered phone numbers that are assigned a random dialing order.
Why the Beal decision affects your business?
the Beal The decision is another in a consistent series of cases that limit the TCPA’s autodialer restriction to number generator use. Most telemarketing lawyers will tell you that the number of new TCPA autodial claims filed since April 2021 has dropped sharply. This “dial order” argument is part of the little that remains of the once broad definition of autodialer. Given this fact, while telemarketing always carries risks, this narrower interpretation of the autodialer restriction should provide some peace of mind to the industry.
Hire experienced telemarketing lawyers.
The TCPA is in a near-constant state of flux, and important questions remain unanswered, including: can you legally use a pre-recorded message to market to existing customers? Can you use dialer software that automatically creates a contact list with limited human intervention? The answers to these questions today may be different than they will be six months from now. So how do you continue? Hire experienced telemarketing lawyers. The right legal team can help your business take the guesswork out of telemarketing hassles. Klein Moynihan Turco attorneys have years of experience advising businesses of all sizes on adhering to industry best telemarketing practices.
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