We are now nearly a year PF—post-Facebook, the seminal decision that effectively shut down the central avenue used by plaintiffs’ attorneys to assert liability under the Consumer Protection Act over the telephone. So where is the TCPA now?
As a quick reminder, on April 1, 2021, the Supreme Court released its decision in Facebook v Duguidwhich evaluated the TCPA’s key statutory definition of an automatic telephone dialing system, known as ATDS. See Facebook c. Duguid, 141 S.Ct. 1163, 1167 (2021). The TCPA definition is deceptively simple:
The term “automatic telephone dialing system” means equipment that has the ability:
(A) to store or generate telephone numbers to call, using a random or sequential number generator; and
(B) to dial these numbers.
47 USC § 227(a)(1). Plaintiffs’ attorneys had long argued for an interpretation of this definition that encompassed equipment that merely dialed from a stored list, without a “random or sequential number generator” (and, with the help of the Federal Communications Commission, largely succeeded in doing so). Essentially, this required reading the word “store” in isolation, despite the contrary grammar and sentence structure. This interpretation expanded the scope of the TCPA to cover modern dialing and text messaging equipment.
After years of litigation, a myriad of appeals and regulatory challenges, the dispute finally ended up in the Supreme Court to resolve a growing division in the circuit. The Supreme Court sided with a strict textual (and grammatical) interpretation of this definition:
To qualify as an “automatic telephone dialing system”, a device must have the ability to either store a telephone number using a random or sequential generator, or produce a telephone number using a random or sequential number generator.
Facebook, 141 S.Ct. at 1167.
It was obvious at the time that this decision would have a fundamental impact on the TCPA business landscape, and the following months confirmed it. ATDS cases – once the main type of TCPA cases – have dropped significantly. But has the TCPA actually become anachronistic? Not enough.
The TCPA business continues to thrive in four main areas: (i) faxes, (ii) pre-recorded and artificial voice calls, (iii) marketing calls/texts to numbers on the National Do Not Call List, and ( iv) marketing calls/texts to numbers. who previously opted out. While the impact of Facebook has undoubtedly been substantial, it must be remembered that the TCPA includes many requirements and regulations that have simply not been affected by Facebook and the ATDS problem.
The TCPA separately regulates marketing faxes and pre-recorded/artificial voice calls and separately requires compliance with the National Do Not Call List and internal Do Not Call List specifications. As auto-dial cases dwindle, cases involving these issues shift to fill the void.
Even with regard to the cases of automatic appeal which Facebook limited, it should also be remembered that some states have their own set of laws covering text messages and automatic dialing equipment. Florida and Washington both have state laws specifically regulating text messages. For example, Florida law – known as the Florida Telemarketing Sales Act, amended in July 2021 to include a private right of action – has seen a significant increase in litigation, with new cases being filed every week. We can expect more states to follow Florida’s model.
Ultimately, although the TCPA was significantly limited by Facebook, the TCPA is still very much alive. And we expect plaintiff attorneys to continue to look to state laws to litigate auto-dial issues that Facebook effectively foreclosed under the TCPA.