April 20, 2021
Earlier this month, the Supreme Court issued a unanimous decision in a high-profile case about the scope of the Telephone Consumer Protection Act (TCPA), the 1991 law that is one of the key legal protections against unwanted robocalls.
The case, Facebook v. Duguid, specifically addressed the TCPA’s definition of an “automatic telephone dialing system,” often referred to as an “autodialer.”
Congress defined an autodialer in the TCPA to be equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator. The Supreme Court ruled in favor of Facebook, finding this definition is (and is intended to be) narrow. In turn, the special restrictions Congress imposed on this equipment, namely making it unlawful to use an autodialer to make calls to cell phones and certain emergency and hospital lines without prior express consent, only apply to that narrow set of calling equipment.
Why is the Facebook v. Duguid decision significant?
For years there has been considerable confusion (not to mention, litigation) about the precise definition and the type of calling equipment subject to the TCPA.
But now some are saying that the Court’s decision will open the floodgates for robocalls. In effect, they suggest that without prompt legislative action, the Court’s decision will undermine ongoing efforts to stop these annoying and dangerous calls to consumers.
That isn’t the case and here’s why: The calls most of us know as robocalls – the scams and spoofed calls with prerecorded or artificial voice messages – still violate the TCPA and other applicable laws.
Calls with prerecorded messages or an artificial voice to your mobile phone need permission, regardless of whether or not they are made with an autodialer, and prerecorded telemarketing calls to your home or mobile phone need your written permission. Telemarketing calls also still will need to meet a number of requirements from the FCC, FTC and state laws. Calls that “spoof” caller ID to defraud or cause harm remain illegal. Any calls that seek to deceive consumers or perpetuate fraud still violate countless consumer protection and fraud laws.
Regardless of the Supreme Court’s decision, the strong and expanding work of connectivity providers to stop illegal and unwanted robocalls will continue unabated.
The calls most of us know as robocalls – the scams and spoofed calls with prerecorded or artificial voice messages – still violate the TCPA and other applicable laws. USTelecom VP Josh Bercu
- Deploying powerful call blocking and labeling tools that keep millions of illegal and unwanted robocalls from reaching subscribers in the first instance.
- Implementing a new caller ID authentication framework, known as STIR/SHAKEN, that will make it harder for robocallers to successfully “spoof” numbers, changing their caller ID to pretend to be your bank, your utility, a local business, or other trusted entity as they seek to perpetuate fraud.
- Tracing (via the USTelecom-led Industry Traceback Group) illegal robocall campaigns back to their source, and seeking to stop them there.
The Supreme Court’s decision will not hinder these efforts at all. That’s not to say the decision isn’t important. It is.
And indeed, Congress should work to ensure that the nation’s primary telemarketing law, the TCPA, has kept up with technological change and that proper consumer protections are in place.
But the decision does not render legal the millions of fraudulent robocalls that plague consumers nor undermine the industry’s ongoing effort to stop the illegal robocalls.