Landmark TCPA Ruling Opens Doors for Outbound Sales and Lead Generation Teams
On April 1, 2021, the Supreme Court put forward a landmark ruling with major implications for the outbound dialing industry. To get the low-down on the ruling and its wide-ranging impact, Convoso CEO Nima Hakimi sat down with TCPA legal compliance expert Michele Shuster, Founding Partner of Mac Murray & Shuster LLP, for an on-demand webinar.
As with any new case impacting industry regulations, the Supreme Court’s ruling may have raised more questions than it answered. To get to the heart of what matters most to outbound sales teams in the ruling, Hakimi and Shuster touched on:
The facts of the Facebook v. Duguid case
What the Supreme Court ultimately ruled in the case
The implications of the case for Convoso customers
How the case might impact the future of regulation
The right approach to supporting call center compliance
The issues discussed in the Facebook v. Duguid case date back to the introduction of the Telephone Consumer Protection Act of 1991. However, these issues came to head when Facebook began sending automated security text messages to subscribers whose accounts were being accessed.
Duguid, the respondent in the case, was receiving these messages despite not being a subscriber. After apparently making a number of requests for Facebook to stop, Duguid hired a class-action attorney and filed a lawsuit against Facebook for every text message that he received, claiming that Facebook was contacting individuals without their consent under TCPA, using an automated telephone dialing system (ATDS).
In the webinar, Shuster describes how the arguments in the case ultimately centered around the definition of an ATDS. “Facebook took the position that the definition of ATDS that is contained within the Telephone Consumer Protection Act (TCPA), was not being properly interpreted [in prior rulings]…[Under the law,] an ATDS is a system that has the capacity to store or produce telephone numbers using a ‘random and sequential number generator’ to dial those [numbers].
In front of the Supreme Court, then, the two sides argued over the specific sentence structure of this TCPA statute defining an ATDS: “The [central] question was what does the phrase ‘random and sequential’ modify? Does it just modify ‘produce’ or does it also modify ‘store.’”
What Did the Supreme Court Rule in Facebook v. Duguid?
Shuster noted that, after weighing the nuances in the sentence structure of the law’s language, the highest court ultimately held, in a unanimous 9-0 decision, that this term, “random and sequential number generator,” modified both “store” and “produce.”
In simpler terms, what the ruling means is that, now, to technically be using an ATDS under the law, a dialer must be randomly and sequentially generating numbers, and either storing those numbers or directly calling them. While it’s easy to get lost in the jargon, the difference has huge implications for outbound call centers. “This distinction is really important,” says Shuster. “Because if you’re using an ATDS you have to have consent, and you have to have prior express written consent if it’s a marketing call, and express consent if it’s not a marketing call.”
What Does the Ruling Mean for Convoso Customers?
Because Convoso’s dialer does not use this random or sequential number generation, and is not considered an ATDS under the law, Convoso customers will now be able to dial leads without opt-in consent under TCPA. While this change opens a lot of doors for outbound sales teams, Nima Hakimi stressed that customers will need to keep compliance top-of-mind and use smarter dialing strategies to effectively reach their leads.
Hakimi: “[Despite this ruling,] you don’t want to just go crazy and call everyone. Besides the fact that you can’t call anybody that is on the Do Not Call list, if you are just going to go crazy and call everybody, guess what? Your calls are going to get blocked even more, [they are going to be] flagged and labeled [as spam].
“You still want to call people that want to talk to you, that have expressed some level of interest in your product or service. Because at the end of the day, the telco carriers have taken the matter into their own hands. And depending upon the leads that you’re calling, if they’re really expensive and you just get blocked…now you’re just losing a lot of money. So just be very aware of what your strategy is and why you’re calling the leads that you’re calling. I want to really emphasize that because some people [in the wake of the Facebook ruling] might let loose and just call anyone and everyone—and I don’t recommend that.”
Shuster agreed, citing the host of regulations that still apply: “If you’re making a marketing call, then you need to scrub against the Do Not Call list unless you have an exemption. If you’re using a pre-recorded message, the same requirements apply for an ATDS because the statutory section that Facebook dealt with is for calls that are using an ATDS or a pre-recorded message to call cell phones…Beyond that, there are state laws to consider…There are a few states with more restrictive laws; they don’t care whether or not you have an ATDS, you need to have consent to call cell phones.”
How Will Plaintiffs and Lawyers Respond to the Ruling?
According to Shuster, there will continue to be ample material to be considered in TCPA-related lawsuits. After all, the TCPA itself isn’t going anywhere. “They are still going to have those cases where people did not follow the Do Not Call laws. They are still going to have the pre-recorded message cases. The TCPA will still apply to those sorts of things.”
Meanwhile, Shuster suspects that there might be other parts of the law’s language that litigants may try to challenge in the future, even if these challenges may have trouble succeeding. “I suspect that they will try to poke holes in the Facebook ruling. The definition of ATDS has the term ‘capacity’ in it, so we go back to this [question] where you have a computer that has the ‘capacity’ to randomly and sequentially dial. But there’s specific language in the decision that addresses that, so I think that will be a very difficult argument to make.”
How Might the Ruling Affect the Future of Regulation?
Even if there might not be much room for relitigation at the moment, Shuster believes that the ruling may have an effect on the way that the outbound calling industry is regulated. “We’ve already had Congressional members saying, ‘We’ve got to change the TCPA. We’ve got to make the language more explicit.’ But we all know, that’s not the issue. The issue is not that somebody is using an automatic dialer versus putting 10 digits in [manually] or pushing a click-to-dial. That’s not the issue they should be focused on, nor are they.”
Even if some of the focus will now be drawn away from autodialers themselves, there is a lot of regulation either out there already or in the works that call centers will need to keep their eyes on. “Regulators have become very aggressive lately…So we have this Industry Traceback Group (ITG) that is policing the telephone networks. We have carriers that are blocking and labeling calls. We have STIR/SHAKEN that’s going to become effective July 1 [of 2021]. We have voice service providers that have to have robocall mitigation plans.”
“There’s just so much that has been put in place to prevent the bad traffic and the bad calls that really, how you dial the call has become irrelevant. So there are groups that we are working with now to stem the potential tide of congressional legislation, and I hope that we’re successful with that.”
The Bottom Line on the Outbound Call Center Compliance
Regardless of what comes of this regulatory activity, both Shuster and Hakimi agreed that the only real way for call centers to navigate the complexity of today’s compliance landscape is by being proactive and enlisting the right resources.
Shuster: “At the end of the day, this is what it comes down to…The folks that don’t get into trouble are the ones that have looked at the issue ahead of time, and they have created a defendable position. And they’ve talked to folks like Nima [Hakimi of Convoso] and they’ve already gotten specifications on the dialer and know that it’s not an ATDS. [They’ve] been able to establish that they have exemptions to the Do Not Call laws, and it’s documented. Because if you can answer those questions ahead of time—usually you’re not going to get an inquiry from a regulator or a lawsuit, but if you do—it’s much easier to make them go away, especially now with this Facebook decision that’s out there.”
Hakimi: “You cannot be reactive and wait for the problem to come to you because once it does, it’s too late. So, I think that’s the message that everybody needs to hear: Be proactive. Talk with your counsel. Get the right advice. Make sure that you’re implementing anything and everything that you can, so that you don’t have the problem come to you [when] it’s too late.”