Congress Answers the Call from Facebook v. Duguid

A new bill in the House of Representatives would amend the Telephone Consumer Protection Act (TCPA) to expand its definition of an automated telephone dialing system (ATDS). H.R.8334 was introduced on July 12th by Rep. Raja Krishnamoorthi [D-IL] and Rep. Katie Porter [D-CA]. The bill, called the Robotext Scam Prevention Act, is a congressional response to the Supreme Court’s narrowing of the ATDS definition in Facebook v. Duguid. Prior to Facebook, the Federal Communications Commission (FCC) had argued that the ATDS definition should be broadly interpreted to encompass any device with the capacity to automatically dial numbers. This broader definition prompted a split among circuits, until the Supreme Court resolved the ambiguity by concluding unanimously that the ATDS definition requires that the equipment in question use a random or sequential number generator.

In ruling with Facebook for a narrower ATDS definition, the Supreme Court noted that Duguid’s “quarrel is with Congress, which did not define an autodialer as malleably as he would have liked.” Congress has now floated a legislative response to this challenge which would expand the ATDS definition. The current TCPA language defines ATDS as “equipment which has the capacity — (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” H.R.8334 would remove “using a random or sequential number generator” from this definition and add language to clarify that the definition encompasses any equipment that would “automatically dial or send a text message to such numbers.” The bill would also provide the FCC with rulemaking authority to define terms such as “automatically,” “dial,” and “send” as they are used in the ATDS definition. This rulemaking would occur within 18 months after the passage of H.R.8334.

Although this bill is in an early stage, it should be cause for concern among entities making calls. If enacted, H.R.8334 would broaden what constitutes an ATDS under the TCPA to include devices beyond those that use a random or sequential number generator. Under this expanded definition, it is likely that predictive dialers would fall under the ATDS definition. It is not inconceivable that businesses may need to dust off pre-Facebook click-to-dial systems if this bill progresses further.

The news for callers is not bad on all fronts however, as H.R.8334 does designate a safe harbor for compliant use of the FCC’s new Reassigned Number Database before making calls or sending text messages. The bill clarifies that callers may avoid liability if they use automated systems to call or text a number held by a person who has consented to receiving the communication, as long as the caller checked the FCC’s Reassigned Number Database and determined that the number being contacted has not been reassigned to a new person since consent was initially provided.

Despite this safe harbor, H.R.8334 still has the potential to disrupt operations for callers. The proposed ATDS definition would encompass much of the modern dialing equipment that has been permitted after Facebook. We will continue to monitor this bill and provide updates as new details of its progress emerge.