Duguid v. Facebook

A Landmark Telephone Consumer Protection Act (“TCPA”) case

On December 8, the United States Supreme court heard oral arguments in Duguid v. Facebook, a landmark Telephone Consumer Protection Act (“TCPA”) case that will ultimately define how an automatic telephone dialing system will be defined. We asked Ari to share his thoughts as to what this critical case means for the collections industry:

  1. The TCPA, among other things, prohibits using an “automatic telephone dialing system” to call cellular and certain other numbers without the “prior express consent” of the called party. Prior express consent, as defined by law and regulation, can encompass numbers provided by consumers to their creditors during the transaction at issue or numbers provided by the consumers directly to the collection agency after being read proper disclosures. However, this means that skip-traced, call captured, or other numbers that are not linked back directly to the consumer’s delivery unfortunately cannot be dialed with equipment that qualifies as an automatic telephone dialing system (commonly referred to as an ATDS).
  2. This is important because over the past ten years, the FCC and certain courts have problematically defined ATDS in a manner that liberally incorporates all predictive autodialers, a relative ordinary (but necessary) technology utilized by nearly all call center environments to help make high volume calls in an efficient and strategic manner. This creates an issue, in that certain cellular numbers researched and found must be dialed through a less desirable manual track, which does not seem to comport with the original intent of the statute which was to stop certain telemarketing practices.
  3. The plain language of the TCPA however states that an ATDS must actually contain a random and sequential number generator (a facet non telemarketing dialers rarely if ever possess).   
  4. This creates an important conflict for the Supreme Court to resolve: whether an ATDS encompasses any device that can store and autodial numbers even if the device doesn’t contain a random and sequential number generator. If the answer is no, it would be a welcome development a number of the years in the making. It would mean that most collection agencies and creditors alike would be able to use their more productive technology without some of the more burdensome TCPA restrictions that have the stymied the industry for years!

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