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Supreme Court Narrows Definition of Autodialer in Facebook Ruling

By Joseph J. Lewczak of Davis+Gilbert LLP, Marc J. Rachman of Davis+Gilbert LLP, Alexa Meera Singh of Davis+Gilbert LLP & Danielle Zolot at Davis+Gilbert LLP on April 29, 2021
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The U.S. Supreme Court released its eagerly anticipated decision in Facebook Inc. v. Duguid yesterday, narrowly construing the definition of an automatic telephone dialing system, or autodialer, under the Telephone Consumer Protection Act (TCPA) and resolving the uncertainty that had led to a long-standing split in the circuit courts.

Autodialer Definition and Interpretations
A circuit split regarding how broadly to define the types of automated technology regulated under the TCPA led to this case.

Under the TCPA, autodialers are defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.”

The Seventh, Eleventh, and Third Circuits have narrowly interpreted this definition, while the Ninth and Second Circuits have interpreted an autodialer more broadly.

Interpretation in Facebook
At issue in Facebook was the Ninth Circuit’s broad interpretation that an autodialer includes any equipment that has the capacity to store and automatically dial numbers, even if the numbers have not been generated by a random or sequential number generator. In other words, the Ninth Circuit held that an autodialer need only have the capacity to “store numbers to be called” and “to dial such numbers automatically.”

The Supreme Court flatly rejected this interpretation in reversing the Ninth Circuit, noting that “expanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel.” For example, a broad interpretation of the type of technology that constitutes an autodialer “could encompass virtually all modern cell phones, [which permit] speed dialing and sending automated text message responses.”

The Court held that “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.”

This ruling provides much-needed clarity on the scope of the TCPA. Under this ruling, equipment that can store and dial telephone numbers, but does not use a random or sequential number generator does not constitute an autodialer.

This decision, however, is by no means a panacea. It is important to consider closely the type of equipment being used to make calls and send text messages, to ensure that telemarketers are acting within the confines of the law. Importantly, because the Justices interpreted the definition of an autodialer as one with capacity to randomly or sequentially generate numbers, courts may still differ on what constitutes such “capacity”—does the system have to actually make use of a random or sequential number generator functionality or can it merely have the “capacity” for such functionality, even if not actually used in a given campaign?

THE BOTTOM LINE

The Court’s narrowing of the autodialer definition will provide flexibility to marketers using systems that do not have the capacity for random or sequential number generation, like those that dial from stored lists. It is likely to significantly reduce the number of class actions brought relating to text message marketing.

Marketers should continue to evaluate outbound calling and texting campaigns on a case-by-case basis. Note that the TCPA still applies to calls made using “an artificial or prerecorded voice,” and limits calls made to numbers on both federal and company-specific do-not-call lists. Other laws, including the Telemarketing Sales Rule, may also apply to certain types of outbound communications.

 

Connect with Joseph on LinkedIn.

Connect with Marc on LinkedIn.

Connect with Alexa on LinkedIn.

Connect with Danielle on LinkedIn.

Photo of Joseph J. Lewczak of Davis+Gilbert LLP Joseph J. Lewczak of Davis+Gilbert LLP

Joseph Lewczak is one of the most experienced advertising, marketing and promotions lawyers in the country. He helps clients ranging from creative, media and public relations agencies to retailers and video game companies assess legal risk and make informed decisions when launching high-impact…

Joseph Lewczak is one of the most experienced advertising, marketing and promotions lawyers in the country. He helps clients ranging from creative, media and public relations agencies to retailers and video game companies assess legal risk and make informed decisions when launching high-impact campaigns for innovative technologies, products and services.

Joseph’s clients need the right answers fast. Often acting as “legal quarterback” in major, multinational marketing and promotional campaigns, he coordinates between agency teams, in-house counsel and other stakeholders to ensure legal compliance across all aspects before launch, including a broad array of intellectual property, advertising, marketing and promotions issues. Whether he’s counseling the smallest agency start-up or the world’s largest communications industry holding company, clients appreciate his uncanny ability to cut through legalese and craft efficient, business-oriented solutions.

Taking a “never say can’t” approach, Joseph is there when his clients need a simple gut check for an idea or when they are developing complex plans for a product or service launch. He advises on strategies to increase brand impressions through a wide array of marketing and promotional tactics, including the use of endorsements and testimonials in social media and beyond, claim support and product demonstrations in more traditional advertising, and sweepstakes and contests and other promotional tools. Joseph bases his advice not only on his legal knowledge, but also on his keen awareness of enterprise risk tolerance.

Joseph has negotiated an endless number of complex talent, production, licensing, sponsorship and agency agreements, worth anywhere from thousands to hundreds of millions of dollars. His clear, practical advice helps clients overcome differences to find common ground.

Before joining Davis+Gilbert, Joseph served as in-house counsel for EMI Music, gaining in-house knowledge that helps him anticipate and address client needs early in the creative process. His experience as an adjunct professor of advertising law at New York Law School and UCLA has deepened his interest in and respect for the history and legal bedrock of advertising law, while further sharpening his ability to spot potential issues and advise on novel legal scenarios.

Joseph is a professional songwriter and guitarist in an indie pop duo with his wife. His intimate knowledge of the music and creative industries gives him an added edge in understanding the pressures his clients face.

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Photo of Marc J. Rachman of Davis+Gilbert LLP Marc J. Rachman of Davis+Gilbert LLP

Marc Rachman, a partner in the Litigation + Dispute Resolution and Intellectual Property + Media Practice Groups, focuses on intellectual property (IP) counseling and litigation, advertising disputes and challenges, and complex commercial disputes. Marc’s experience spans the full range of IP, including trademark…

Marc Rachman, a partner in the Litigation + Dispute Resolution and Intellectual Property + Media Practice Groups, focuses on intellectual property (IP) counseling and litigation, advertising disputes and challenges, and complex commercial disputes. Marc’s experience spans the full range of IP, including trademark, copyright, false advertising, rights of publicity, trade secret and patent infringement disputes. He helps clients of all sizes assess, protect and optimize the value of their intellectual property.

Insightful and pragmatic, with a deep knowledge of his clients’ businesses and industries, Marc gets to the root of a matter quickly with strategic insight and practical solutions. His experience as a media planner before pursuing his legal career gives him a unique perspective when advising on advertising and media matters. Marc represents industry-leading advertising and marketing, financial services, digital media and adtech businesses, world-renowned entertainers, small businesses, and technology startups, among others.

Marc works closely with clients to assert and defend IP infringement claims, provides pre-litigation and litigation avoidance counseling, and advises on the use of IP in advertising, marketing and promotions. He has an impressive record in prosecuting and defending cases, and his knowledge of the courts and the alternative dispute resolution process helps him guide clients in deciding when to fight and when to settle. He is exceptionally swift and effective in resolving IP matters in court, before the USPTO and its Trademark Trial and Appeal Board, and at the negotiating table.

Marc’s experience extends to copyright disputes concerning music, photo, pictorial, sculptural and literary works. He has also worked on trademark matters relating to word and design marks, trade dress, and nontraditional trademarks — including sounds and product designs — as well as celebrity images and personas. In recent years, he has been a driving force in developing and building the firm’s niche practice in defending graffiti art copyright infringement claims.

Marc has helped several celebrity clients address online reputation management issues. He also has extensive experience handling complex commercial disputes involving the enforcement of advertising agency-client agreements, digital advertising sales agreements, partnership dissolutions, employment terminations, and restrictive covenants and real estate leasing disputes.

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Photo of Alexa Meera Singh of Davis+Gilbert LLP Alexa Meera Singh of Davis+Gilbert LLP

Alexa Meera Singh takes a creative approach to counseling agencies, advertisers and global brands. She addresses complex legal issues that arise in advertising, marketing and media activities, and helps clients navigate regulatory requirements of the Food & Drug Administration, Federal Trade Commission, Consumer…

Alexa Meera Singh takes a creative approach to counseling agencies, advertisers and global brands. She addresses complex legal issues that arise in advertising, marketing and media activities, and helps clients navigate regulatory requirements of the Food & Drug Administration, Federal Trade Commission, Consumer Product Safety Commission, and other state and federal agencies while adhering to industry-specific mandates.

With a keen understanding of a wide range of industries, including beauty, wellness, sustainability, fashion and textiles, food and beverage, and children’s products, Alexa provides cross-purpose, multidisciplinary legal counseling. A strong communicator, she translates complex legal principles into actionable guidance and balances legal compliance with business needs.

Alexa supports client solutions as early as the initial concept development stage by advising on claim substantiation and advertising copy, assisting with regulatory reviews and approvals, and developing compliance programs. In addition, she frequently advises on social media and influencer marketing campaigns as well as sweepstakes, contests and promotions. Alexa also helps draft and negotiate agreements concerning brand campaign activations and supports the development and licensing of consumer products and intellectual property.

Before she joined Davis+Gilbert, Alexa was an associate at Manatt, Phelps & Phillips and Proskauer Rose, where she gained experience handling transactional and regulatory matters in advertising, entertainment and media as well as in consumer protection litigation.

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Photo of Danielle Zolot at Davis+Gilbert LLP Danielle Zolot at Davis+Gilbert LLP

Danielle C. Zolot helps clients in the advertising, media, marketing and entertainment industries resolve complex, sensitive disputes. She advises on a wide range of issues including right of privacy, intellectual property and employment, assisting in all aspects of a case from pre-suit to…

Danielle C. Zolot helps clients in the advertising, media, marketing and entertainment industries resolve complex, sensitive disputes. She advises on a wide range of issues including right of privacy, intellectual property and employment, assisting in all aspects of a case from pre-suit to discovery to trial.

Motivated by a deep passion for the entertainment and media industries, Danielle delivers creative and cost-effective strategies for clients of all sizes. She is an efficient researcher and a dedicated problem solver who adeptly handles critical motions and intense negotiations.

Danielle manages cases from inception to resolution and effectively collaborates on large litigation teams. She has opposed large and small firms, government agencies and pro se plaintiffs.

After beginning her legal career at Cahill Gordon & Reindel, Danielle joined Manatt, Phelps & Phillips, where she worked on complex commercial and consumer protection litigation and advisory matters relating to the Telephone Consumer Protection Act. Her diverse experience also includes acting as amicus curiae to nonprofit organizations in arguing for the return of Nazi-looted Holocaust-era artwork to its rightful heirs before federal circuit courts and the Supreme Court of the United States.

Read more about Danielle Zolot at Davis+Gilbert LLPEmailDanielle's Linkedin Profile
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  • Blog:
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  • Organization:
    International Lawyers Network
  • Article: View Original Source

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