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April 22, 2022 Articles

One Year Later: Facebook’s Impact on the TCPA

The Supreme Court’s ruling in Facebook v. Duguid has effectively closed the door on most autodialer claims.

By Christopher E. Roberts, Virginia Bell Flynn, and Sarah E. Siu
So, where do we stand one year after the Facebook decision?

So, where do we stand one year after the Facebook decision?

Pexels | Luca Sammarco

In 2021, Facebook forever changed our legal landscape. Not because a whistleblower exposed Facebook’s questionable business practices before Congress. Not because Facebook was accused of facilitating the events of January 6.

Rather, it was because of something far less political. Something far less sexy. Yet, the impact on our legal landscape was arguably just as great.

In 2021, the U.S. Supreme Court decided a case called Facebook, Inc. v. Duguid. 141 S. Ct. 1163 (2021). The Facebook decision fundamentally changed a law called the Telephone Consumer Protection Act (TCPA). In relevant part, the TCPA protects people from receiving unwanted telephone calls and text messages.

The issue before the Facebook court was how to interpret the term “Automatic Telephone Dialing System” (ATDS) under the TCPA. The TCPA defines an 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.”

Most of the technologies used today will place calls or send text messages from a stored or uploaded list of numbers. Thus, the practical big-picture question in Facebook was whether such technology is considered to be an ATDS as defined by the TCPA. The Facebook court answered this question in the negative. (Facebook did not impact the TCPA’s restrictions on placing prerecorded voice calls, placing artificial voice calls, placing calls to phone numbers on the National Do Not Call Registry or a company’s internal do-not-call registry, or sending unsolicited fax advertisements. Rather, Facebook solely addressed ATDS claims.) The Facebook decision, however, did not unequivocally hold that ATDSs cease to exist. Rather, the Facebook court left open the possibility that certain technologies with certain characteristics could be considered to be an ATDS under the TCPA.

So, where do we stand one year after the Facebook decision?

Where we stand is that it is increasingly difficult for plaintiffs to prevail on ATDS claims in light of the Facebook decision.

Plaintiffs have had some success post-Facebook. That success, however, has been primarily at the pleading stage.

For example, one court denied a motion to dismiss, finding that it was not unreasonable to infer that a call was placed from an ATDS where the plaintiff alleged that there were several seconds of silence on the line before being connected to a live agent. Callier v. GreenSky, Inc., No. 20-cv-00304, 2021 WL 2688622 (W.D. Tex. May 10, 2021).

Another court denied a motion to dismiss where the plaintiff alleged that a text-messaging platform: 1) allowed thousands of text messages to be sent without human involvement, and 2) stored numbers, generated sequential numbers, and dialed those numbers in a sequential order. Montanez v. Future Vision Brain Bank, LLC, 536 F.Supp.3d 828 (D. Colo. 2021).

Defendants, however, have been equally successful in getting ATDS claims dismissed at the pleading stage. Courts that have ruled for defendants generally hold, in light of Facebook, that a system that does not “generate random or sequential numbers,” rather than pulling the phone numbers from a created list of numbers, is not an ATDS. See generally Borden v. eFinancial, LLC, No. 19-1430, 2021 WL 3602479 (W.D. Wash. Aug. 13, 2021) (appeal pending).

Plaintiffs’ success on ATDS claims, however, has been extremely limited when the court considers a developed factual record as part of a motion for summary judgment. As of April 1, 2022, eleven courts have considered ATDS claims in the context of a motion for summary judgment. Ten of those courts have granted summary judgment for the defendant.

The most significant post-Facebook rulings in the context of summary judgment came from the Eighth and Ninth Circuit Courts of Appeals. In Meier v. Allied Interstate LLC, No. 20-55286, 2022 WL 171933 (9th Cir. Jan. 19, 2022), the Ninth Circuit held, in light of the Facebook decision, that the system at issue was not an ATDS simply because it stored a pre-produced list of numbers and dialed those numbers in a sequential order.

In reaching this decision, the Ninth Circuit rejected arguments based on Footnote 7 of the Facebook decision. Footnote 7 addressed the meaning of “store or produce,” leading some district courts to conclude at the pleadings stage that dialing preloaded lists of phone numbers in a randomly generated order could suffice to qualify as an ATDS. The Ninth Circuit noted that this “expansive interpretation” would swallow up the Facebook rule that the phone numbers themselves be randomly or sequentially generated.

Shortly thereafter, the Eighth Circuit Court of Appeals released its opinion in the consolidated appeal Beal v. Outfield Brew House, LLC, Nos. 20-1961 and 20-3581, 2022 WL 868697 (8th Cir. Mar. 24, 2022). The Beal court upheld summary judgment for defendants in the context of a text messaging system, ruling that the TCPA requires a system to “produce” by “generating a random number,” and also rejecting the Footnote 7 argument.

The single court that did not grant a defendant’s motion for summary judgment denied cross motions for summary judgment on the issue of whether the system used to place the calls was an ATDS. Carl v. First National Bank of Omaha, No. 2:19-cv-00504, 2021 WL 244162 (D. Me. June 15, 2021). The Carl court held there were simply “factual disputes” as to whether an ATDS was used to place the calls at issue.

In short, no post-Facebook court has yet held that an ATDS was used to place a call or text message when considering a fully developed factual record. As such, the impact of Facebook is readily clear one year later. Plaintiffs can certainly pursue other claims under the TCPA in light of Facebook. Plaintiffs, however, undoubtedly face an uphill battle when proving the merits of an ATDS claim brought under the TCPA.

Christopher E. Roberts is with Butsch Roberts & Associates LLC in Clayton (St. Louis), Missouri. Virginia Bell Flynn is with Troutman Pepper in Charlotte, North Carolina, and Sarah E. Siu is with Troutman Pepper in Richmond, Virginia.

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