Professional Association for Customer Engagement Files Post-Facebook Amicus Brief in Northern District of California

Professional Association for Customer Engagement Files Post-Facebook Amicus Brief in Northern District of California

If you are reading this blog, you’re probably already familiar with the U.S. Supreme Court’s April 1, 2021 opinion in Facebook v. Duguid. Facebook largely resolved the fundamental question of what an “Automatic Telephone Dialing Device” (ATDS) is as defined by the Telephone Consumer Protection Act (TCPA). The statutory definition is “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.” The question that Facebook addressed was whether the random or sequential number generation requirement applied to both of the words “store” and “produce,” or instead only applied to the word “produce.” The Supreme Court answered this question unequivocally in the first paragraph of its Facebook opinion, “We conclude that the clause modifies both, specifying how the equipment must either ‘store’ or ‘produce’ telephone numbers.”

Facebook, however, did not explicitly address other concepts related to the statutory definition of an ATDS which are relevant in cases examining whether equipment qualifies as an ATDS in a post-Facebook environment. One such case is Hufnus v. DONOTPAY, Inc., which is currently pending in the Northern District of California. On May 28th we, along with Nobel Systems, filed an Application on behalf of the Professional Association for Customer Engagement (PACE) to appear as amicus curia to provide PACE’s insight on those issues and specifically three issues:

  • The interpretation of “capacity” is properly interpreted as a “present capacity.” The Facebook opinion explicitly required that number generator technology must be used when making calls.
  • The interpretation of “number generator” is properly interpreted as a “telephone” number generator, as the Facebook opinion implicitly required that the numbers generated are telephone numbers that are dialed.
  • The purpose of Footnote 7 of the Facebook opinion was to provide evidence that number generators could store numbers, contrary to Duguid’s technical understanding.

We hope that the proposed Amicus Brief will help put to rest once and for all any misunderstanding as to what an ATDS is and is not. Businesses, consumers, and all others using a cell phone need to have certainty that they are not federal law violators because of an overly broad interpretation of a definition propagated by the class action plaintiff’s bar and vexatious litigators. The narrow interpretation of ATDS will not stimy regulator and consumer efforts to prosecute bad actors. The TCPA still prevents placing unsolicited prerecorded messages to businesses to consumers or soliciting consumers on the Do-Not-Call Registry without consent or an applicable exemption. Additionally, all voice service providers will be required to meet certain STIR/SHAKEN requirements that will mitigate robocalls, which, combined with the efforts of the Industry Traceback Group, will make it virtually impossible for bad actors to hide from consumers or regulators.

Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.

2560 1707 Michele Shuster
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