Everything you need to to know about the TCPA Supreme Court Case (Facebook vs. Duguid)
You may have heard recently about the Supreme Court case, Facebook v. Duguid which has relevance to P2P calling and texting programs. We have compiled a few key questions here, and will update this page as more information becomes available.
For our clients, the central question this case weighs is whether you can text or call a cell phone without prior express permission (aka opt-in). The law that governs this question is the Telephone Consumer Protection Act (TCPA). The TCPA says that you cannot use an automatic telephone dialing system (ATDS) to contact cell phones without prior consent. So, the question has always been — what defines an ATDS?
Over the years, various courts have answered that question differently. The FCC, whose job it is to set rules based on the TCPA, recently ruled that the line in the sand was human intervention. Both ThruText and ThruTalk use human intervention to initiate every call or text, so we were always on the non-ATDS side of that line.
With this recent ruling, the Supreme Court has handed down an even narrower definition of an ATDS. Following the plain language of the statute, the Court ruled that a system only qualifies as an ATDS if it can call using random and sequential number generation, meaning picking strings of numbers randomly or in order on its own and then dialing them. Here’s the language from the ruling:
To qualify as an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.
ThruText and ThruTalk do not have, and have never had, the capacity to do random or sequential number generation. So by both the FCC’s test of human intervention and the Supreme Court’s test of random and sequential number generation, ThruText and ThruTalk do not qualify as an ATDS.
The headline here is that it doesn’t. There is now no question that ThruText and ThruTalk do not fit the definition of an Automated Telephone Dialing System, and as such they can be legally used to contact cell phones without prior express consent.
This ruling is only a few days old, and there are still many outstanding questions about its implications.
For a good list of open questions, check out this post. We will be monitoring developments closely and will provide updates as we have them.
Not directly, but we’re glad you asked! 10DLC is a new system that carriers like AT&T and T-Mobile are using to route text messages in order to protect the SMS channel from junk/spam texts. The Supreme Court ruling referenced is an interpretation of the TCPA’s rules for what technology can be used to contact cell phones.
If you’re curious to learn more about 10DLC, you can see our FAQ on that here.