Just one year ago, the U.S. Supreme Court forever changed the telemarketing world with its opinion in Facebook, Inc. v. Duguid. In Facebook, the Court settled a years-long disagreement and clarified how narrow the Telephone Consumer Protection Act’s (“TCPA”) autodialer restriction really is. The restriction only applies when dialing equipment produces the phone numbers to be called using a random or sequential number generator. Since Facebook, courts have almost uniformly held that use of a number generator is a feature that is necessary to meet the definition of a TCPA autodialer. Recently, the Eighth Circuit Court of Appeals became the second appellate court to uphold that definition in a case captioned Beal v. Outfield Brew House, LLC.
How does the Beal decision affect the TCPA autodialer definition?
Outfield Brew House operate bars in Missouri. They collect customer and potential customer phone numbers to which they send text message marketing. These numbers are manually entered by staff into a telemarketing database. When Outfield sent its mass text message blasts, it would do so employing software to filter through its contact list and then send individuals on that list text messages. The software itself is designed to narrow the list according to selected filters, randomly determine the dialing order, and then distribute the messages.
Beal received one of these marketing text messages and sued Outfield for TCPA autodialer violations. Outfield moved for summary judgment before the trial court, arguing that the text message software that it used: (1) required a person to manually enter phone numbers; and (2) did not have random number generator capability. The trial court agreed and entered judgment for Outfield.
On appeal, the Eighth Circuit affirmed. The appellate court recognized that Congress passed the TCPA to combat telemarketing calls made using a random digit or sequential digit generator. Outfield argued that because its text message software only used manually entered phone numbers, the TCPA autodialer restriction would, therefore, not apply. In response, Beal countered that randomizing dialing order is enough to bring the claim within the TCPA’s scope. The Eighth Circuit agreed with Outfield, holding that the Facebook decision did not expand the definition of autodialer use to include manually entered phone numbers that are assigned a random dialing order.
Why does the Beal decision affect your business?
The Beal decision is another in a consistent line of cases that limit the TCPA’s autodialer restriction to number generator use. Most lawyers in the telemarketing space will tell you that the number of new TCPA autodialer claims brought since April 2021 has sharply decreased. This “dialing order” argument is part of what little remains of the formerly broad autodialer definition. Given this fact, while telemarketing still carries risk, this narrower interpretation of the autodialer restriction should provide some peace of mind to the industry.
Hire experienced telemarketing attorneys.
The TCPA is in a near-constant state of flux and important questions remain unanswered, including: Can you legally use a prerecorded message to market to existing customers? Can you use dialing software that automatically creates a contact list with limited human intervention? The answers to these questions today may be different from what the answers will be six months from now. So how do you keep up? Hire experienced telemarketing attorneys. The right legal team can help your business take the guess work and worry out of telemarketing. The attorneys at Klein Moynihan Turco have years of experience advising businesses of all sizes on following industry-best telemarketing practices.
If you need assistance with updating your telemarketing practices or have been sued for violating the TCPA, email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
Attorney Advertising
Photo by Mika Baumeister on Unsplash
Similar Blog Posts:
How the Facebook Decision Has Changed the Autodialer Factors Analysis
