Facebook v. Duguid

Whether the Telephone Consumer Protection Act prohibits use of a mass telephone dialing system that dial numbers from a database when the system does not also have the capacity to generate random or sequential numbers.

Top News

  • Supreme Court Weakens Autodialer Protections:

    Today, the U.S. Supreme Court ruled in Facebook v. Duguid that individuals can only claim protection under the Telephone Consumer Protection Act from unwanted calls made using a mass dialing system or "autodialer" if the system uses a random or sequential number generator to either store or produce the numbers called. EPIC filed an amicus brief urging the Court to interpret the autodialer restriction broadly to include systems that automatically dial numbers stored in lists or databases. EPIC argued that "narrowing the autodialer definition would not protect privacy" but would instead "put the most widely used mass dialing systems outside the scope" of the ban.

    Many robocallers and would-be robocallers will interpret the Court’s decision today as essentially abrogating the autodialer restriction, which will likely lead to a surge in unwanted automated calls to cell phones. Automated calls are already a daily nuisance for Americans. Individuals increasingly ignore calls from unknown numbers because they assume the calls are robocalls, which has caused particular harm to contact tracing during COVID-19. Congress must update the autodialer restriction to protect Americans from the coming onslaught of unwanted automated calls.

    But the Court’s decision today is not a total victory for robocallers. The decision does not limit the definition of an autodialer to systems that create random or sequential telephone numbers. The Court says that autodialers include systems that use random or sequential number generators to order numbers in a list. Because computer programs commonly use sequential number generators to store or pull information from a list, it is hard to think of a mass dialing system that would not use a sequential number generator at some point in the program.

    Litigation will continue over the scope of the autodialer definition. Americans need protection from robocallers now, and Congress should act swiftly to update the autodialer restriction.

    (Apr. 1, 2021)
  • More top news »
  • EPIC & National Consumer Law Center Tell Court Not to Let Robocallers Off the Hook » (Feb. 2, 2021)
    EPIC and the National Consumer Law Center have filed an amicus brief in Lindenbaum v. Realgy, LLC, urging the Sixth Circuit to reject immunity for illegal robocalls made between 2015 and 2020. The case follows the Supreme Court’s decision in Barr v. American Association of Political Consultants, in which the Court held that an exception added in 2015 to the decades-old robocall restriction was unconstitutional and must be severed from the broad robocall ban. As defendant in a separate robocall suit, Realgy argued that the Supreme Court’s decision meant that the broad robocall ban was unenforceable for the period that the unconstitutional exception was in effect, from 2015-2020. The district court agreed and granted Realgy’s motion to dismiss. EPIC and NCLC filed an amicus brief arguing that granting robocallers immunity “would reward those who made tens of billions of unwanted robocalls and deprive consumers of any remedy for the incessant invasion of their privacy.” EPIC regularly files amicus briefs supporting consumers in illegal robocall cases.
  • Supreme Court to Decide Scope of Robocall Ban » (Jul. 9, 2020)
    Just days after upholding the federal robocall ban against a First Amendment challenge, the U.S. Supreme Court has agreed to decide the scope of the ban in a new case, Duguid v. Facebook. Following the D.C. Circuit’s invalidation of the FCC’s definition of an “autodialer”—the technology companies use to automatically dial vast numbers of consumers— federal appeals courts have split on how to interpret the term. Telemarketers argue that an autodialer must generate random or sequential numbers, while consumers and consumer groups like EPIC maintain that the law bans systems that automatically call numbers from lists. In Gadelhak v. AT&T, EPIC argued that adopting the telemarketers’ autodialer definition “would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete.” EPIC routinely files amicus briefs in cases on the Telephone Consumer Protection Act.
  • Supreme Court Hears Oral Argument in Robocall Ban Case » (May. 6, 2020)
    Earlier today, the U.S. Supreme Court heard oral argument in Barr v. American Association of Political Consultants. The argument was livestreamed, with EPIC staff providing commentary on Twitter. The case asks whether an exemption to the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls, is constitutional, and, if not, whether the exemption should be severed or the whole law struck down. EPIC defended the TCPA in an amicus brief. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained that cell phone adoption has made "the harm caused by unwanted automated calls" greater than when the robocall ban was enacted in 1991. EPIC said that "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.
  • EPIC, Consumer Groups Call for Review of Robocall Ruling » (Mar. 12, 2020)
    EPIC joined the National Consumer Law Center and other consumer groups in an amicus brief supporting review of recent decision that limits consumer robocall protections. In Gadelhak v. AT&T Services, the Seventh Circuit concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision deepened a split among federal appeals courts over the scope of federal robocall protections. EPIC and NCLC also filed an amicus brief during the court's original consideration of the case. The EPIC brief explained that allowing telemarketers to auto-dial consumers "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • EPIC to Supreme Court: Robocall Ban is Constitutional » (Mar. 2, 2020)
    In an amicus brief for the U.S. Supreme Court, EPIC today defended the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained in Barr v. American Association of Political Consultants that "the harm caused by unwanted automated calls" is more acute than when the robocall ban was enacted in 1991. EPIC said "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." Senator Markey, Representative Eshoo, and more than a dozen members of Congress also filed an amicus brief in support of the consumer privacy law. EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.
  • Federal Appeals Court Rules Consumers Can Sue for Automated Texts—But Only If Calls Are Random » (Feb. 19, 2020)
    The Seventh Circuit has concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision in Gadelhak v. AT&T Services deepens a split among federal appeals courts over the scope of federal robocall protections. EPIC and the National Consumer Law Center filed an amicus brief in the case, arguing that an autodialer need only dial numbers from a list, such as a customer contact database. EPIC and the NCLC explained that allowing telemarketers to robocall consumers from a list "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." The EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • Supreme Court to Review Constitutionality of Federal Robocall Ban » (Jan. 11, 2020)
    The Supreme Court has aqreed to hear a challenge to the constitutionality of the Telephone Consumer Protection Act, a federal law that prohibits unwanted robocalls. The law generally restricts the use of autodialers, but in 2015 Congress created an exception for robocalls to collect debts guaranteed by the federal government. Several groups have since challenged the law on First Amendment grounds, arguing that the TCPA discriminates against particular speakers. The Court will now consider the issue in Barr v. American Association of Political Consultants. EPIC filed an amicus brief in Gallion v. Charter Communications, a related case, arguing that “these challenges represent a systematic effort by companies to undermine the purpose of the TCPA and to inundates consumers with unwanted calls.” EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • House Passes Bill to Combat Robocalls » (Jul. 25, 2019)
    In a 429-3 vote, the House passed a bill to combat the onslaught of robocalls. The Stopping Bad Robocalls Act would increase the fines for illegal robocalls, require phone companies to block robocalls by default, require more businesses to obtain consumer consent before calling, and much more. The Act comes two months after the Senate passed a similar bill—the Traced Act—with near unanimous support. Many criticized the Senate's bill for not going far enough. EPIC joined a coalition of consumer groups that urged members of Congress to support the House bill. EPIC has long advocated for stronger regulations surrounding robocalls. EPIC provided expert analysis to Congress, submitted numerous comments, and filed multiple amicus briefs emphasizing the need to limit robocalls.
  • Ninth Circuit Strikes Down Debt-Collection Exception to Robocall Ban » (Jul. 9, 2019)
    The Ninth Circuit has again found that the Telephone Consumer Protection Act limits the ability of government debt collectors to make robocalls. The law prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. In Duguid v. Facebook, the Ninth Circuit found that the exception violated the First Amendment because it preference debt collectors over other companies that could might use robocall technology. The outcome is favorable for consumer privacy. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • EPIC, NCLC Urge Federal Appeals Court to Limit Robocalls » (Jul. 9, 2019)
    EPIC and the National Consumer Law Center have filed an amicus brief in a case concerning the scope of the federal law, the Telephone Consumer Protection Act, that protects consumers against robocalls. In Gadelhak v. AT&T Services, EPIC and NCLC argued that list-based systems are included among the law's definition of "autodialers." To do otherwise, the brief explained, "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC and NCLC further explained that the "mass texting from a list, such as the system used by AT&T in this case, is precisely the type of technology the TCPA sought to restrict." The amici warned that a narrow interpretation of the law "would accelerate the rising levels of robocalls and texts." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
  • Congress, FTC Take Action Against Robocallers » (Jun. 27, 2019)
    A House subcommittee voted unanimously to advance a wide-ranging bill intended to crack down on robocalls. The Stopping Bad Robocalls Act (H.R. 3375) would enroll customers in free call-blocking programs and take more aggressive rulemaking steps to ensure people only get calls they ask to receive. The FTC also announced a partnership with state enforcers--"Operation Call it Quits"—to crack down on illegal robocalls. The initiative includes 94 actions targeting robocallers responsible for more than one billion calls. EPIC has worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.
  • Supreme Court Sidesteps Merits in Junk Fax Case » (Jun. 20, 2019)
    The Supreme Court today directed a lower court to reexamine PDR Network v. Carlton & Harris Chiropractic, a case which concerns a company's efforts to disregard an FCC rule about junk faxes. The Court told the Fourth Circuit to resolve "preliminary" questions about the legal effect of the FCC rule and the company's ability to challenge the rule through the agency process. EPIC filed an amicus brief in the case. EPIC explained that permitting companies to challenge FCC rules outside the process Congress established "will exclude the voices of consumers" in agency decision-making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC and other consumer organizations routinely provide comments to federal agencies through the federal agency rule making process. EPIC also contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.
  • FCC Affirms Robocall Blocking By Default to Protect Consumers » (Jun. 7, 2019)
    The FCC voted to confirm that voice service providers may aggressively block unwanted robocalls before they reach consumers. The Commission stated: "While many phone companies now offer their customers call blocking tools on an opt-in basis, the Declaratory Ruling clarifies that they can provide them as the default, thus allowing them to protect more consumers from unwanted robocalls and making it more cost-effective to implement call blocking programs." EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to proactively block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.
  • Senate Passes Anti-Robocall Act 97-1 » (May. 23, 2019)
    The Senate overwhelmingly passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, sponsored by Senator John Thune (R-S.D.) and Senator Ed Markey (D-Mass.). The Act would give regulators more time to find scammers, increases civil penalties, promotes call authentication and blocking techniques, and brings together federal agencies and state attorneys general to coordinate prosecution of robocallers. EPIC has long advocated for robust telephone privacy protections and regularly files amicus briefs and comments in support of stronger consumer protections against robocalls.
  • Appeals Court Strikes Down Debt Collector Exception to Robocall Ban » (Apr. 25, 2019)
    A federal appeals court ruled today that an amendment to the federal robocall ban is unconstitutional. The Telephone Consumer Protection Act prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. The court in AAPC v. FCC found that the debt-collection exemption "undercuts" the privacy protections in the law. So the court found the exception unconstitutional and struck it from the law. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC has testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.
  • Bill to Limit Robocalls Moves Forward in Senate » (Apr. 3, 2019)
    The Senate Commerce Committee today approved a bill to strengthen the FCC's ability to prevent robocalls. The Telephone Robocall Abuse Criminal Enforcement and Deterrence or TRACED Act, enhances the FCC's authority to issue fines against robocallers, extends the statute of limitations, and promotes call authentication and blocking adoption. EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.
  • EPIC Urges Supreme Court to Preserve Public Voice in Robocall and Junk Fax Law » (Feb. 14, 2019)
    EPIC has filed an amicus brief urging the Supreme Court to safeguard FCC rules that protect the public from robocalls and junk faxes. The case, PDR Network v. Carlton & Harris Chiropractic, concerns a company's efforts to disregard an FCC rule about junk faxes. EPIC explained that permitting companies to avoid FCC rules "will exclude the voices of consumers" in agency decision making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.
  • EPIC Supports Constitutionality of "Robocall" Law » (Nov. 13, 2018)
    EPIC has filed a "friend of the court" brief in a case concerning the constitutionality of the Telephone Consumer Protection Act, the law the prohibits unwanted "robocalls." In Gallion v. Charter Communications, EPIC argued that "the TCPA prohibitions are needed now more than ever," citing the intrusiveness of marketing calls directed toward cell phones. EPIC also said the TCPA "protects important consumer privacy interests." EPIC testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.
  • EPIC Advises FCC on Robocalls Regulation » (Jun. 29, 2018)
    EPIC advised the FCC on how to interpret the Telephone Communications Protection Act to best protect consumers in light of the recent decision in ACA Int'l v. FCC. EPIC filed a friend of the court brief in that case arguing that consumers could revoke consent by any "reasonable means." The court agreed but vacated other aspects of the rule. Many industry groups urged the Commission to make a rule that if "any" human intervention is involved in the dialing or sorting of the list of numbers a calling system would not be considered an "automatic telephone dialing system." EPIC opposed that recommendation, explaining that such a definition would allow autodialers to use deceptive tactics to evade regulation. EPIC contributed to the development of the Telephone Communications Protection Act and regularly submits comments to the FCC.
  • EPIC Supports Additional Regulation of Robocalls » (Apr. 17, 2018)
    In advance of a hearing on "Abusive Robocalls and How We Can Stop Them" EPIC recommended reforms that would combat fraud while protecting privacy. EPIC supports regulations that would (1) allow phone providers to proactively block numbers that are unassigned, unallocated, or invalid; (2) block invalid numbers without requiring consumer consent; (3) provide strong security measures for any database of blocked numbers; and (4) prohibit spoofing with the intent to defraud or cause harm. EPIC played a leading role in the creation of the Telephone Consumer Protection Act and continues to defend the Act.
  • D.C. Circuit Affirms "Consent" Protection in FCC Robocall Rule » (Mar. 16, 2018)
    A federal appeals court ruled today in a closely watched case concerning robocalls. The rule under review in ACA International v. FCC concerned the FCC's regulations for the Telephone Consumer Protection Act. EPIC filed a friend of the court brief in the case in support of the FCC regulations. EPIC said that companies "seeking to engage in privacy-invading business practices" bear "the burden of proving consent." The court agreed that consumers could withdraw consent by all "reasonable means." However, the court vacated other aspects of the rule, including the definition of automated telephone dialing system and proposed procedures for calls to reassigned numbers.
  • DC Appeals Court Hears Arguments in Telemarketing Privacy Case » (Oct. 20, 2016)
    The federal appeals court in Washington, D.C. heard oral arguments Wednesday in a case with major implications for telephone privacy. The suit, ACA International v. FCC, was brought against the Federal Communications Commission by telemarketing companies and others challenging rules adopted under the Telephone Consumer Protection Act that prohibit automated calls made to cell phones without their consent. EPIC and six consumer privacy groups filed an amicus brief in the case, stressing the importance of privacy protections for cell phone users. EPIC also challenged a claim made by the telemarketers that "37 million" numbers were reassigned each year, making it difficult, the companies claimed, to comply with the privacy law. During the argument, one of the judges pressed the telemarketers' attorney on the point (audio), citing research in the EPIC amicus brief. EPIC frequently participates as amicus curiae in cases that raises novel privacy issues.
  • EPIC, Consumer Coalition Tells FCC to Limit Health Care Robocalls » (Oct. 19, 2016)
    EPIC and a coalition of consumer privacy advocates have urged the Federal Communications Commission to reject a request by health insurance companies to make unlimited health-related robocalls to consumers under the Telephone Consumer Protection Act. The insurance companies asked the FCC to amend the TCPA so that once a consumer provides her phone number to her doctor, she has "consented" to receiving telemarketing calls from other health care providers on anything medically related. The coalition comments, led by the National Consumer Law Center, urge the FCC to limit the scope of consumers' consent to medical robocalls by exclude telemarketing calls and allowing only calls related to the original reason the consumer provided her phone number. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC's 2015 order that strengthened consumer protections under the TCPA.
  • EPIC Advises Congress on Modernizing Telemarketing Rules to Protect Consumers » (Sep. 21, 2016)
    EPIC has sent a letter to the House Energy and Commerce Committee in advance of the hearing on “Modernizing the Telephone Consumer Protection Act.” The telemarketing law bars telemarketers and robocallers from contacting consumers by phone fax, or text without prior consent. EPIC urged the Committee to ensure that an update to the law “protects consumers from unwanted commercial communications.” EPIC said legal rights should be “robust, enforceable and minimally burdensome for consumers." Earlier this year, EPIC filed an amicus brief in support of strengthening TCPA protections for consumers. EPIC has also testified before Congress about the telemarketing law and submitted many comments concerning its implementation.
  • EPIC, Consumer Coalition Oppose Robocalls by Government Contractors » (Jul. 26, 2016)
    EPIC and a coalition of consumer groups have petitioned the FCC to reverse its recent decision to exempt federal contractors from restrictions on telemarketing and robocalls. The FCC incorrectly determined that the Telephone Consumer Protection Act (TCPA) “does not apply to calls made by or on behalf of the federal government in the conduct of official government business.” The petition, led by the National Consumer Law Center, warns of significant increases in unwanted robocalls from government contractors that consumers would be powerless to stop. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC’s 2015 order that strengthened consumer protections under the TCPA.
  • Senate Examines "Do Not Call" Law » (May. 19, 2016)
    The Senate Commerce Committee held a hearing yesterday on the Telephone Consumer Protection Act. The "TCPA" bars telemarketers and robocallers from contacting consumers by phone or fax without prior express consent. In January, EPIC filed an amicus brief to provide greater TCPA protections for consumers.  EPIC said that widespread use of cellphones “has amplified the nuisance and privacy invasion caused by unwanted calls and text messages.” EPIC has testified before Congress about the TCPA and submitted many comments concerning the implementation of the consumer privacy law.
  • EPIC and Consumer Privacy Groups File Brief Supporting FCC in Telephone Privacy Case » (Jan. 25, 2016)
    EPIC and six consumer privacy organizations have filed a "friend-of-the-court" brief in support of the Federal Communications Commission in ACA International v. FCC. The case was brought against the FCC by industry groups charged with violating the Telephone Consumer Protection Act. The FCC had made clear that companies cannot make automated or prerecorded calls to consumers without their consent. EPIC argued in its brief that widespread adoption of cell phones "has amplified the nuisance and privacy invasion caused by unwanted calls and text messages." EPIC and the consumer organizations urged the federal court to uphold the FCC order safeguarding consumers.
  • Supreme Court Rules Settlement Offers Can't Moot Consumer Class Actions » (Jan. 20, 2016)
    The Supreme Court has ruled that a company cannot terminate class action litigation by strategically making a settlement offer of full relief to individual plaintiffs. The case, Campbell-Ewald Co. v. Gomez, involved a consumer who refused to drop his Telephone Consumer Protection Act lawsuit in exchange for such an offer. The defendant company argued that the offer, which exceeded the statutory damages under the TCPA, mooted his case. The Justices disagreed, ruling 6-3 that "an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation." EPIC routinely works to protect consumer privacy interests in class action settlements.
  • FCC Implements Strict Rules to Halt Unwanted Telemarketing » (Jun. 19, 2015)
    The Federal Communications Commission has adopted new rules that impose strict limits on telemarketing practices. Under the rules, consumers can halt unwanted messages by telling companies to stop calling. The rules also allow phone companies to offer call-blocking services to screen out automated telemarketing calls. In 2014, the FCC received more than 215,000 complaints from consumers regarding unwanted telephone solicitations. EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. EPIC President Marc Rotenberg helped establish the Telephone Consumer Protection Act.
  • Senators Urges FCC to Protect Consumers Against Unsolicited Calls » (Jun. 9, 2015)
    Almost a dozen senators have urged the Federal Communications Commission to uphold consumer privacy protections within the Telephone Consumer Protection Act. Next week the Commission will vote on two dozen proposals seeking to relax enforcement of the Act. According to Senator Markey and others, the FCC's recommendation to permit unsolicited texts and calls without consumer consent "would threaten privacy and result in an increase in disruptive and annoying calls for American consumers." The Commission will vote on the proposals during an Open Meeting on June 18, 2015. EPIC supported enactment of the TCPA and has advocated for strong enforcement.
  • FCC Issues Stronger Telemarketing Rules to Protect Consumers » (Jun. 12, 2012)
    The Federal Communications Commission's final rule amending the Telephone Consumer Protection Act of 1991 (TCPA) regulations is now in effect. The rule requires "(1)prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines; (2) allow[s] consumers to opt out of future robocalls during a robocall; (3) limit[s] permissible abandoned calls on a per-calling campaign basis, in order to discourage intrusive calling campaigns; and (4) exempts prerecorded calls to residential lines made by health care-related entities governed by the Health Insurance Portability and Accountability Act of 1996." EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. For more information, see EPIC: Telemarketing and the Telephone Consumer Protection Act (TCPA).

Summary

The Telephone Consumer Protection Act ("TCPA") protects American consumers from invasive automated calls. One of its several provisions prohibits use of automated dialing systems (also called "autodialers") without the consent of the called party. Noah Duguid received several security alert text messages from Facebook despite not being a Facebook user and never consenting to the texts. His repeated attempts to stop the texts failed. Duguid filed a putative class action aganst Facebook, alleging violations of the TCPA's autodialer restriction. The district court dismissed the case, holding that Facebook's software was not an autodialer. The Ninth Circuit reversed. The U.S. Supreme Court has agreed to hear the case to resolve a split betweel federal courts of appeals over the proper scope of the autodialer definition.

Background

Legal Background

The Telephone Consumer Protection Act was enacted in 1991 to protect consumers from unwanted automated and prerecorded calls. It bans using “any automatic telephone dialing system” (commonly called an "autodialer") to call a cell phone without the consent of the party called. The law defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential generator; and (B) to dial such numbers.” Companies that want to autodialer consumers argue that an autodialer must use a random or sequential number generator to store or produce numbers. Consumers argue the opposite: the statute targets systems that can automatically dial numbers that are stored in the system, or they can dial automatically dial numbers that the system produces with a random or sequential number generator.

The FCC has long recognized that autodialers include predictive dialers, which dial numbers from a database in anticipation of a live agent being ready to conduct the call. But in the 2015 case ACA International v. FCC, the D.C. Circuit found that the FCC's orders on the autodialer definition were inconsistent, and vacated the FCC's autodialer definition.

Since ACC International, federal courts of appeals have split over the proper scope of the autodialer ban. Prior to taking up Duguid's case, the Ninth Circuit adopted the broad definition of autodialer in Marks v. Crunch San Diego, reasoning that "using a random or sequential number generator" modifies "produce" but not "store".

Factual Background

Noah Duguid has never been a Facebook user. Yet, over a ten month period in 2014, Facebook sent Duguid a series of text messages containing automated security alerts for an account he didn't have. Duguid requested that the messages stop both over text and email, to no avail. Finally, Duguid sued Facebook for violating the TCPA.

Procedural History

In the district court, Facebook argued that Duguid failed to properly allege that Facebook's text messaging system is an autodialer because it texted numbers in a database, and did not have the capacity to dial random or sequential numbers. Facebook also argued that the autodialer restriction was unconstitutional because the exemption for callers collecting a government backed debt was an unconstitutional content-based restriction on speech. The district court dismissed the complaint based on a narrow definition of autodialer.

The Ninth Circuit reversed based on its prior decision in Marks. The Ninth Circuit also found that, while the government debt exemption violated the First Amendment, it could be severed from the remainder of the statute.

Facebook asked the U.S. Supreme Court to review the Ninth Circuit's decisions on both the autodialer and the First Amendment questions. The Court resolved the First Amendment question in Barr v. American Association of Political Consultants, and then granted review in Duguid to resolve the circuit split over the definition of an autodialer.

EPIC's Interest

EPIC supports strong enforcement of the TCPA to protect American consumers from the privacy invasion of unwanted automated calls. EPIC routinely participates as amicus in TCPA cases. EPIC filed a brief in the Seventh Circuit case Gadelhak v. AT&T, which also concerned the scope of the autodialer restriction. EPIC also filed briefs in Barr v. American Association of Political Consultants (First Amendment challenge to the TCPA before the U.S. Supreme Court), Gallion v. Charter Communications (First Amendment challenge to the TCPA before the Ninth Circuit), ACA International v. FCC (challenge to the validity of FCC TCPA orders before the U.S. Supreme Court), and PDR Networks v. Carlton & Harris Chiropractic (scope of federal court deference to FCC TCPA orders before the U.S. Supreme Court). EPIC also files comments before the FCC on TCPA implementation.

Legal Documents

U.S. Supreme Court (No. 19-511)

U.S. Court of Appeals for the Ninth Circuit (No. 17-15320)

U.S. District Court for the District of Northern California (No. 15-cv-00985)

Resources

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