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United States:
Another court is citing Facebook to dismiss TCPA autodialer claims
June 08, 2021
Klein Moynihan Turco LLP
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In April, the US Supreme Court ruled in the Facebook v. Duguid case, what is known as an autodialer (also known as an automatic telephone dialing system) under the Telephone Consumer Protection Act (“TCPA”). The court eventually ruled that a TCPA autodialer must use a random or sequence number generator to store and then dial phone numbers.
According to Facebook, lower courts have been tasked with applying this definition to pending proceedings. This week, a North Carolina federal court was looking at the definition question and ruled that a telemarketer must actually use a random or sequence number generator to generate, store, and dial phone numbers to justify using a TCPA autodialer. The case is entitled Barnett v. Bank of America (EDNC.).
How does the Barnett decision clarify the TCPA autodialer definition?
In April, we wrote about the Maine and Colorado rulings, which were among the first to directly address issues related to the autodialer definition in the Facebook ruling. The Barnett ruling follows the same path as that of the Supreme Court, but it has other helpful details. In Barnett, the court describes Bank of America’s process of maintaining a contact list as using multiple factors. In other words, Bank of America created its targeted called party list on purpose. This factor is crucial when considering the TCPA ban in question. The TCPA prohibits companies from making calls or sending text messages with devices that use a random or sequence number generator to generate, store, and dial the phone numbers to be called during a telemarketing campaign. Barnett Court found that Bank of America’s dialers took numbers from a preselected list but did not use a random or sequence number generator in making the telemarketing calls in question.
The evidence at Barnett showed that the Avaya equipment Bank of America used did not use a random or sequence number generator to store or generate numbers, nor to dial them. Although the Avaya system detects when the recipient does not pick up the phone and can schedule a call back, this does not indicate that the device is using a random number generator or a sequence number generator to dial phone numbers. Based on this evidence, the court issued a summary judgment in Bank of America’s favor on all of its pending TCPA Autodialer claims.
Why does Barnett’s decision matter to your business?
The Barnett Decision promotes the law of what constitutes a TCPA autodialer in a positive way for the telemarketing industry. While each issue and each type of dialer is unique, this decision supports the argument that dialing from a contact list that the company has purposely maintained and refined is TCPA compliant. The Supreme Court stated that the purpose of the TCPA is to prevent random or sequential dialing that would tie up multiple phone lines in a company or, more importantly, even call emergency numbers. It appears that the district courts that have so far looked at the Facebook ruling have all agreed that using intentionally created contact lists instead of compiling them through random number generation does not violate the TCPA. These results are consistent with the intention of Congress to create the TCPA.
Hire experienced TCPA lawyers.
The TCPA is a constantly evolving law. Hundreds of judges across the country have TCPA claims pending and each judge must make their own decision on how the Facebook decision will apply to the particular facts in court. As with all things involving human decisions, the results can inevitably vary from judge to judge. This is one of the many reasons why you should hire a team of experienced TCPA attorneys to help you stay TCPA compliant and avoid going to court. Klein Moynihan Turco’s attorneys focus on telemarketing compliance and defending TCPA litigation. If your company needs help updating or creating telemarketing guidelines, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
Related blog posts:
Split decision: 5th and 11th circuits diverge on TCPA standing
A beginner’s guide to defending TCPA litigation
Does the TCPA apply to text messaging?
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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