Landmark Supreme Court TCPA Ruling

Nothing in this article constitutes legal advice. You should consult an attorney for guidance on regulatory compliance. 

For many outbound contact centers and sales teams, the April 1, 2021 ruling on Facebook’s ATDS (automatic telephone dialing system) challenge led to more questions than answers. We’ve assembled some responses to some of the frequently asked questions arising from this historic case. 

  • What did the Supreme Court rule in the Facebook ATDS case?
  • Can I dial leads without opt-in consent using an autodialer now?
  • What the heck is an ATDS that uses a random or sequential number generator? Am I using one?
  • Is the TCPA (Telephone Consumer Protection Act) still in place?
  • Can I dial leads without opt-in consent with an IVR, IVA or pre-recorded messages?
  • Why did Facebook bring this case to the Supreme Court?
  • Is the government likely to take further action?

For a quick summary on this important topic, download our infographic on the 5 Key Takeaways from the Facebook vs. Duguid Decision for outbound sales and lead gen teams.

What did the Supreme Court rule in the Facebook ATDS case?

In a 9-0 decision, the Supreme Court of the United States ruled that in order for a device to be considered an ATDS under TCPA, it must utilize a random or sequential number generator. This ruling has wide implications for outbound sales and telemarketing teams, as the previous FTC interpretation of TCPA broadly defined automatic telephone dialing systems to include most dialers. It further required opt-in consent from leads prior to being contacted using an autodialer. 

Justice Sotomayor wrote the majority opinion for the court, and described how the TCPA was specifically written to cover equipment that stores and dials sequentially and automatically generated phone numbers. She further argued that by interpreting ATDS more broadly, any cell phone could be considered an ATDS under TCPA.

Can I dial leads without opt-in consent using an autodialer now?

Customers using Convoso’s state-of-the-art dialer will now be able to dial leads without opt-in consent under the TCPA. However, additional guidelines such as HIPAA and state/local regulations remain in place. Convoso recommends that users  seek independent counsel to ensure compliance with additional regulations. Additionally, Convoso users can continue to take advantage of our advanced tools to support compliant outbound dialing.

For parties that are using an ATDS that generates phone numbers sequentially or automatically, you still need consent to contact a lead. 

What the heck is an ATDS that uses a random or sequential number generator? Am I using one?

Before you start dialing leads without opt-in consent, you need to be sure you aren’t using this type of ATDS. One of the issues that the TCPA addressed in 1991 was that private entities were utilizing this type of equipment to dial broad ranges of phone numbers, which sometimes included emergency services numbers. For example, there were instances where telemarketers were tying up all of the phone lines for hospitals and doctors’ offices. Telemarketing services using a random number generator would dial a random assortment of numbers within an area code, whereas those using a sequential number generator would dial a range of numbers such as 202-345-0000, 202-345-0001, 202-345-0002 and so on. Using either of these technologies, it was impossible to avoid the possibility of dialing an emergency service. While most modern dialers do not use these techniques, it’s critical to make sure you are not using a system that is capable of generating and dialing random or sequentially generated numbers before dialing leads without opt-in consent.

Is the TCPA still in place?

The TCPA is absolutely still in place. While the court clarified the definition of an ATDS, the law itself remains in place. It is important to continue to follow additional rules set forth under the TCPA, such scrubbing lists against the Do Not Call List and never dialing emergency services lines.

Can I dial leads without opt-in consent with an IVR, IVA or pre-recorded messages?

No, the TCPA explicitly prohibits calling individuals with an IVR, robotic voice solution or pre-recorded messages without consent. You can dial leads utilizing these technologies if you have opt-in consent, or alternatively you can take advantage of these technologies after a lead has spoken to a live agent. For example, after speaking with an agent, a consumer could be redirected to use self-service technology for simpler tasks like submitting payment data or answering pre-qualification questions.

Why did Facebook bring this case to the Supreme Court?

The Facebook v. Duguid Case involved an individual who was receiving account security text messages from Facebook, but did not have a Facebook account. Duguid claimed that this was a breach of the TCPA, and argued that Facebook was contacting individuals without their consent using an ATDS under the law. While the case was initially dismissed, the Ninth Circuit Court reversed the decision and argued that Duguid was correct in asserting that Facebook was using equipment with the capacity to store and dial phone numbers automatically. The Supreme Court did not agree, and argued that using this definition almost any device with the capacity to call other devices could be considered an ATDS under TCPA. Additionally, they argued that the original text should be interpreted to specifically define an ATDS as a piece of equipment utilizing a random or sequential number generator under the law.

Is the government likely to take further action?

In some capacity, the government will almost certainly take further action as a result of the decision. Congress and state lawmakers will likely focus on this issue in the coming months and years, and we anticipate that further legislation restricting calling leads without opt-in consent will become law at some point in time. However, for now Convoso customers will be able to dial leads without opt-in consent under the TCPA as long as all other relevant guidelines under the applicable laws are followed and no numbers are dialed that are in the do not call (DNC) list.

Should I now move away from my consent-based marketing approach? 

While it’s true that you now may be able to dial leads without prior express written consent, it is our position that a marketing approach that focuses on leads that have provided consent will still yield the most favorable results. You will be most successful focusing on those people that want to hear from you, and this approach will also help you avoid the risk of having your calls flagged as spam or scam likely or being blocked altogether. Protecting your caller ID reputation will go a long way to maximizing your contact rates, and ultimately opportunities for conversion.

Convoso CEO Nima Hakimi sat down with legal compliance expert Michele Shuster, Founding Partner of Mac Murray & Shuster LLP, to get clarification about this new ruling and its impact on outbound call center operations. Catch the ON DEMAND WEBINAR:  Blockbuster Supreme Court Case Changes the Compliance Game for Outbound Sales Teams

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