When it comes to TCPA compliance, it can be hard to keep up with all the changes. It seems like every week there’s a court case worthy of attention. Of course, some cases are bigger than others, and there’s been no bigger—or more impactful—case in the last year than Facebook v. Duguid, which was ruled on by the US Supreme Court in 2021.
If you’re dialing leads, then you’ve probably heard about the case. But do you know how it’s affecting current TCPA litigation trends? Do you know what other compliance issues you need to watch out for?
If you don’t, then you’re not alone. (After all, you’ve probably got plenty else to worry about.) That’s why Convoso CEO and Co-Founder Nima Hakimi hosted TCPA experts Arvell Craig, Director of Compliance Services at DNC.com, and Christine Reilly, Partner & Legal Expert at Manatt, Phelps & Phillips, for a recent webinar on current litigation trends.
Watch the full video here, or read up on the highlights in our recap below.
The Top 10 Impacts of the Facebook v. Duguid Ruling
At the heart of the Facebook case heard by the Supreme Court was a single question: “What is the meaning of ‘autodialer’?’”
While you can get all the details about the ruling in our previous Facebook v. Duguid analysis, basically, the Supreme Court ruled that courts and regulators had to pay attention to the exact language of the TCPA statute, saying that an autodialer must rely on “random or sequential number generation.” Christine Reilly says this unanimous decision has had a profound impact on the industry, producing these top ten effects:
- Fewer ATDS Claims: Since the ruling, fewer cases are centered around the question of whether a device or software constitutes an autodialer. “I know plenty of plaintiff lawyers who have said ‘I will not file autodialer claims,’” says Reilly. The odds are simply stacked against them thanks to the Facebook decision.
- Changes in business practices: While many businesses have not changed their practices in the wake of the ruling, some have switched things up, getting rid of TCPA disclosures and ramping up their dialing of lists without consent. (As the panel discusses later, this latter practice in particular might not be the best one.)
- More prerecorded voicemail and artificial voice claims: With the ATDS question settled for the time being, many litigators are targeting the use of artificial and prerecorded voice messages under the TCPA. Use of both of these technologies, whether on calls made to landlines or cell phones, trigger the TCPA consent requirements.
- More National DNC registry claims: Most recent litigation centers around the definitions of “telephone solicitation” and “residential subscriber.”
- New(ish) Internal DNC claims: Violations of an internal company DNC list are being considered by many courts as separate from National DNC violations, giving plaintiffs a private right of action.
- Plaintiff Lawyers Gone Wild: As litigators are forced post-Facebook to find other avenues of legal action, some are taking things in pretty wacky directions—like arguing that text messages are the same as prerecorded voice messages under the law. In Reilly’s words: “Come on, guys. Really? Talk about ridiculous.”
- Plaintiff Lawyers Gone Wild II: Litigators are also doubling down on outlandish “It wasn’t me” arguments, claiming that their own information was entered fraudulently, even when it seems quite obvious these lawyers are on a fishing expedition.
- State law—the new frontier: Individual states are enacting their own mini-TCPA laws, privacy regulations, and more. “State laws are becoming more restrictive than the federal TCPA,” says Reilly.
- Longevity of TCPA cases: Because the Facebook decision has really put a strain on these plaintiff lawyers and their practices, we’re seeing TCPA cases stick around for longer.
- TCPA settlements: Additionally, plaintiffs are demanding larger settlements to go with their longer cases, in order to make up for the relative lack of cases overall.
Compliance Tips to Navigate the Post-Facebook v. Duguid Landscape
With so many changes brought about by the landmark Supreme Court case, call center businesses need to take action to ensure they can support compliance and continue driving performance. Follow these tips covered by the panel to get started.
Maintain your TCPA prior express written consent disclosures
As much as the Facebook ruling has affected things, Nima Hakimi says that, in Convoso’s view, you should keep your previous disclosures in place to best support compliance.
Give careful consideration to turning up your dialer
“If you’re dialing lists that are only scrubbed against the DNC, you’re most likely going to be dialing people that are harder to get on the phone because they did not ask to be contacted,” says Hakimi. As a result, he says you’re likely going to over-dial your leads, and your calls are going to get blocked and flagged.
Pre-records and artificial voice messages are risky business. At a minimum, button up your TCPA compliance
Reilly says pre-recorded voicemails and artificial voice messages have always been risky technologies, but today, they are riskier than ever before. That doesn’t mean you can’t use these technologies, but at the very least, you need to make sure your compliance approach is as air-tight as it can be. “You need to make sure you’re doing everything you can. In case there is a claim that comes—what is going to be your response? What kinds of documents do you have to show you have consent? What kind of compliance measures do you have in place?”
Be prepared if the pendulum swings
The current litigation and regulation environment is in a state of flux after the game-changing Facebook ruling. While, for now, the pendulum has swung away from ATDS cases, you never know when the winds (and laws) will change. That’s why it’s always best to be proactive when it comes to compliance. Leverage expert legal help, and partner with a software provider that is keeping a close eye on and adapting to these rapid changes.
During the webinar, the panel discussed more compliance tips and calling practices that can help you stay on top of changing regulations. Watch the full webinar to see the full list of tips and more. Or, dig deeper into TCPA best practices and outbound dialing best practices over at the Convoso blog.
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