TCPA Footnote 7 Cannot Save Autodialer Claims

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In the U.S. Supreme Court’s decision in Facebook v. Duguid, the Court clarified the definition of the term “autodialer” as used in the Telephone Consumer Protection Act (TCPA”). In that decision, largely a win for the telemarketing industry, the Supreme Court included a TCPA footnote (also referred to as Footnote 7) that addressed a linguistic point which illustrates how parts of the TCPA’s definition of autodialer work together. Some plaintiff’s attorneys have taken Footnote 7 to mean that any pre-produced contact list that dialing equipment calls from is, by definition, an autodialer. A South Carolina federal court recently became among the first to directly address the TCPA footnote issue in a case captioned Timms v. USAA Federal Sav. Bank.

How does the Timms opinion clarify the import of the TCPA footnote?

Margueritte Timms sued USAA for various TCPA autodialer violations. Following years of litigation and after the Facebook decision was released, USAA moved for summary judgment arguing that the equipment it used did not qualify as an autodialer under the TCPA because it neither stored nor produced phone numbers using a random or sequential number generator. Timms countered that USAA’s equipment appeared to have the capacity to randomly or sequentially store numbers, making it an autodialer. The Court rejected that argument, finding that the equipment called phone numbers from a pre-selected list of USAA members based on certain criteria. It thus did not use a random or sequential number generator to store or produce the numbers on its contact list. This ruling is in line with other courts that have also recently addressed the issue, albeit not as thoroughly.

Equally if not more important is the Court’s wholesale rejection of the plaintiff’s TCPA footnote argument. The Court found that the TCPA footnote addressed a linguistic and not a substantive point. Moreover, the footnote references an amicus brief that had explained that certain dialing equipment from 1988 exemplified the problems consumers encountered because of random or sequential dialers. That 1988 dialer generated a sequential list of telephone numbers, assigned each contact a list number, and then randomly selected a list number to dial the accompanying phone number. Conversely, USAA’s dialing equipment picked from a pre-selected list that USAA intentionally cultivated using various criteria. Accordingly, the Court held that Footnote 7 does not save this overly broad definition of “autodialer” from meeting its demise.

Why does the TCPA footnote matter to your business?

In the wake of the Facebook decision, many plaintiffs and their attorneys are attempting to salvage their TCPA autodialer claims by clinging to the TCPA footnote in an effort to avoid dismissal of their claims or judgments against them. The Timms decision brings further clarity to the futility of this argument. Many telemarketers today use pre-selected lists cultivated using any number of criteria (e.g., consumer interaction with text message links). Where those lists are created using certain factors (even using an algorithm to find the desired group of consumers), businesses can (in some jurisdictions) potentially avoid TCPA liability based on autodialer claims.

Hire experienced TCPA attorneys.

Dialing equipment has advanced quite a bit since the aforementioned 1988 dialer was cutting edge technology. Telemarketers use a variety of techniques and technologies to call and text consumers. Is your system an autodialer? The answer is still a complicated one. However, hiring TCPA-focused attorneys is one way that companies can shore up their TCPA compliance. The attorneys at Klein Moynihan Turco can assist you with all things TCPA: from updating your compliance policies and procedures to defending you in litigation. If you need assistance updating your telemarketing policies and procedures, please 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.

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