Reexamining the Supreme Court Facebook ATDS Ruling Six Months Later

Top lessons for outbound call centers following the Supreme Court ruling (Facebook v. Duguid) on ATDS & TCPA compliance

On April 1, 2021, the US Supreme Court handed down its decision in the Facebook v. Duguid case. As we reported at the time, the landmark TCPA ruling was a game-changer for call centers everywhere.

The Court’s unanimous decision narrowed the definition of the term “automated telephone dialing system,” or ATDS. This meant that call centers using a dialer (like Convoso’s) without an ATDS could call leads without opt-in consent under TCPA. But what has happened since?

 To mark the six-month anniversary of the ruling, Contact Center Compliance hosted a packed webinar with compliance expert, attorney, and Czar of  TCPAWorld, Eric J. Troutman. In this recap, we’ll explore Troutman’s key points, including: 

  • Why TCPA is still central to ongoing call center-related litigation
  • How case law is changing its tune on prerecorded calls
  • Why SMS is now your safest channel
  • What call centers need to look for in their dialer source code
  • Why some click-to-call dialers are now less safe 

Note: Nothing in this article constitutes legal advice. Convoso recommends retaining and consulting an attorney for ongoing guidance on regulatory compliance. 
 

Top Takeaways from the Webinar

During a packed one-hour session, Troutman explored the lasting implications of the Facebook Supreme Court case and analyzed how the courts are still grappling with it. For contact center managers looking to keep up with the ever-changing compliance landscape, the webinar is well worth tuning into.

 Of course, to save you some time, we’ve broken down Troutman’s top lessons for navigating the post-Facebook ruling landscape.
 


1. TCPA remains the “biggest litigation cash cow in US history”

Despite the changes brought by the Facebook ruling, the TCPA remains very much in place. It’s the only federal statute that courts have to prevent robocalls—and there is still a lot of room for interpretation and confusion under the law. Because of this, violations are still hotly pursued by aggressive plaintiffs and lawyers, and courts are still split on its enforcement.

Troutman underscored this, saying, “More multi-millionaire plaintiffs have been made under TCPA than any other federal statute…[The TCPA] is not going away. There is a whole army of folks lining up to create these lawsuits. If you slip up, there’s going to be somebody there that wants to sue you.”

The lesson of all this continued legal action, according to Troutman, even in a post Facebook v Duguid age, is simple: “It’s very expensive to defend these lawsuits, so we have to stay compliance minded, we have to stay ahead of the law, and we have to make sure we’re doing things the right way.”

 


 


2. Post-
Facebook litigation is dominated by prerecorded call cases.

A huge variety of call center actions qualify as prerecorded calls, including IVR, voicemails, ringless voicemails, and wait-queue messages.

Critically, any kind of these prerecorded calls automatically triggers the TCPA statute, requiring call centers to have documented consent. Because of this, this continues to be an area of active litigation—and one where call centers will want to be cautious.

A note on abandoned outbound calls:

For contact centers making outbound marketing calls, Troutman outlined one added area of concern: abandoned calls. Under existing rules, an abandoned call must be accompanied by a prerecorded message identifying who is making the call.

So, to comply with these regulations, each of these abandoned outbound marketing call will automatically be considered a prerecorded call. That’s why Troutman always advocates for a 0% abandonment rate on outbound marketing calls. “If you don’t have a 0% abandonment rate then you’re going to have to give a prerecorded message, and the second you do that, you’re tripping the statute. It’s a big trap for the unwary.”
 


3. SMS is now your safest channel (outside of Florida)

While prerecorded calls can be a minefield in the current landscape, the great news is there’s a safe alternative. Troutman says that outside of Florida, which enacted its own mini-TCPA,  callers should move away from prerecorded calls and toward the use of text messages.

There’s just one caveat, according to Troutman: “[This does not include] blast texting. We’re talking about AI texting, interactive texting, and triggered texting.” These types of texts were validated and strengthened by the facts of the Facebook case, which centered on texts triggered by customer actions.

 


 


4. Contact centers need to understand whether their source code uses random or sequential number generation

The day after the Facebook ruling came down, Troutman says the biggest question contact centers needed to ask themselves was: “Does my source code have the ability to randomly or sequentially generate numbers? Regardless of whether or not it actually uses that ability, does it have the ability in the source code?”

Six months later, this is still essential knowledge for all contact centers. The plaintiff’s bar is aggressively attacking defendants on this issue. And if this ability is anywhere in your source code, you have to get it out of there.

Luckily for Convoso customers, this is a non-issue, as our source code does not have this ability.
 

5. The majority of courts are ignoring Facebook at the pleading stage

“[Facebook v. Duguid] should have enabled us to throw out almost all ATDS cases,” says Troutman, “but the courts just aren’t biting.” Instead, a majority of cases brought to courts that relate to ATDS issues are surviving the initial pleading stage.

The good news is that many call center defendants are winning these cases when they get to summary judgment. Nevertheless, call centers will want to avoid the increased costs and increased risks that come with cases that go this far. 

“It is a big, multiple hundreds of thousands of dollars swing when a court will give you [a favorable ruling] at motion to dismiss versus if you have to go all the way to summary judgment on full discovery and on a full motion,” says Troutman.
 

6. Click-to-dial safety wanes for some dialers

Since the dust has settled after the Facebook ruling, one thing that Troutman sees much differently is the relative safety of click-to-dial functionality. “The paradigm has shifted,” according to Troutman. “Click-to-dial systems are subject to the exact same paradigm as all the other dialers. Either it’s using a random or sequential number generator to determine sequence or it’s not.”

What is a safe Click-to-Call dialer?

Click-to-call or click-to-dial functionality should be a separate dialer product from any autodialer solution. Convoso’s customers can use our Click-to-Comply™ dialer product without worrying about the safety concerns of a manual functionality within an ATDS system. This separate product does not use random and sequential number generation and continues to support compliant, productive dialing for outbound call centers.   
 


Keeping Compliance Front and Center

While we’ve covered the key highlights of the webinar, there’s plenty more to unpack in the full video.

Underlying everything in Troutman’s discussion, however, is another simple message: TCPA compliance remains essential to call center success. Not only that, but partnering with a dialer provider that keeps compliance front and center is as important as ever.

At Convoso, compliance is our number one concern. We’ve developed our platform to support comprehensive compliance, and we’re constantly making updates to provide our partners with the ability to practice safe, effective dialing.

 

 

Find out how Convoso supports compliance while boosting contact rates by scheduling for a free demo today.

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