Note: The below information is not intended to be used as legal advice or a substitute for consulting your own legal counsel. Specific circumstances will vary depending on the nature of your business, and we encourage anyone in the space of sending calls or messages to consult their legal counsel.
In Facebook v. Duguid, the Supreme Court considered the definition of an “automatic telephone dialing system” (commonly called an ATDS or autodialer), a term in the Telephone Consumer Protection Act (TCPA) that has been the subject of much debate and litigation.
In a unanimous decision, the Supreme Court ruled that “In sum, Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.”
What does this mean?
The Supreme Court’s ruling applies to the portion of the TCPA that imposes restrictions on calls and texts made using automated dialing methods. The ruling clarifies what type of equipment is considered an autodialer for purposes of that provision.
The Court’s ruling does not have any effect on other portions of the TCPA, including the restrictions on calls and texts made using artificial or prerecorded voice, or to numbers on the Do Not Call registry. It also does not uniformly apply to state laws that may restrict the use of automated dialing methods.
So, can I call or text anyone now without consent?
No. Here’s why you should think twice before changing the way you do business:
- It’s too early to tell what may happen. Lower courts are going to continue to interpret the Supreme Court’s decision, and Congress may introduce new legislation to alter the language of the TCPA that the Supreme Court focused on in this decision.
- Unwanted calls and texts are bad business. Contacting consumers that did not give consent to be contacted by you is detrimental to your brand and reputation. In an era of social media and instant feedback, being the company that makes unwanted calls is a recipe for instant negative feedback without a significant return. People who don’t want or expect to be contacted by you are more likely to be annoyed than they are to take advantage of whatever offer you are making.
- Bandwidth’s policies have not changed. Bandwidth’s Acceptable Use Policy prohibits the use of Bandwidth services for “sending unsolicited calls, messaging, e-mailings (including, without limitation, commercial advertising, and informational announcements) if such unsolicited activities could reasonably be expected to or do in fact provoke complaints.”
- The Facebook ruling did not invalidate the TCPA. Plaintiffs are still going to be filing lawsuits based on the TCPA. Defending these lawsuits is very costly and can tie you up for a long period of time, even when your defenses are good.
- Mobile carriers are still blocking calls and texts that they determine to be unwanted by their mobile subscribers, regardless of whether those calls and texts are legally compliant. If you begin contacting consumers without consent and they complain or report your traffic as unwanted spam, you are putting your ability to communicate with your customers at significant long-term risk, even if you subsequently stop contacting consumers without consent. Mobile carriers continue to have the ability to block traffic even if callers/senders can demonstrate that their communications are legally compliant.
While the Supreme Court’s decision in the Facebook case provided clarity about what constitutes an autodialer, the need for prudent business practices around consent has not changed. Businesses and organizations seeking to contact consumers should continue to make sure that their communications are wanted and expected before reaching out with a call or text. You also should consult with your legal counsel to track developments in light of the Court’s decision and to evaluate considerations specific to your business.