The Supreme Court settles the definition of “Autodialer” under the TCPA

On April 1, 2021, the U.S. Supreme Court issued an important decision in Facebook vs. Duguid interpreting the scope of the Telephone Consumer Protection Act of 1991 (TCPA).

The Telephone Consumer Protection Act proscribes abusive telemarketing practices by, among other things, restricting certain communications made with an “automatic telephone dialing system.” The TCPA defines such “autodialers” as equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers.

Facebook allows its users to elect to receive text messages when someone attempts to log in to the user’s account from a new device or browser. Facebook sent such texts to Duguid, alerting him to login activity on a Facebook account linked to his telephone number.  Duguid, however, never had a Facebook account. He tried unsuccessfully to stop these unwanted messages, and eventually filed a class action against Facebook. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages.

The Supreme Court concluded that 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. In this case, Facebook did not use a “random or sequential number generator.”  Rather, it sent targeted, individualized texts to numbers linked to specific accounts.

While the Supreme Court resolved the interpretation of the TCPA provision enacted in 1991, it would be up to Congress to review and potentially amend the application of the Act in light of the new technologies and practices affecting consumers’ privacy. In the meantime, companies should review their telemarketing practices to ensure compliance with the TCPA and other applicable regulations.

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