Lex Indicium

My Friends Call Me Murphy … You Call Me RoboCall

August 5, 2021


Pesky telemarketing calls that plagued consumers in the 1990s were severely reined in through a combination of technology, such as caller ID, and legislation, such as the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA regulates unsolicited marketing activities directed at residential telephones, including land lines and mobile phones by voice call or text. Among other things, the TCPA, as amended over the years:

  1. Established the national Do Not Call registry whereby consumers may register their numbers and organizations may be fined for directing unsolicited marketing activities to those registrants’ phones;
  2. Restricts the time periods during which unsolicited marketing calls and texts may be sent;
  3. Prohibits the use of pre-recorded phone contacts, such as robocalls and robotexts; and
  4. Prohibits the use of automated dialing technologies, such as autodialers.

Importantly, there are several phone and text activities that are exempt from TCPA regulation. Unsolicited marketing contact by phone from charities, political groups, debt collectors, surveys, and companies the recipient has either recently done business with or has given written permission may be exempted from certain TCPA regulations. In addition, if the nature of the unsolicited contact is not to market goods and services to consumers, it would not run afoul of the TCPA. For example, neither an unsolicited business-to-business sales call nor an informational message about the recipient’s flight cancellation violate TCPA.

The Supreme Court recently and unanimously further clarified the scope of the TCPA’s prohibition of automated dialing technologies. In Facebook, Inc. v. Duguidthe Court clarified that only a narrow subset of automated dialing technologies are prohibited by the TCPA. Specifically, an autodialer must “use a random or sequential number generator to either store or produce phone numbers to be called” in order to be prohibited by the TCPA. Equipment that merely stores and dials telephone numbers, such as the system Facebook uses to automatically text login notifications to a user-provided phone number, is not prohibited by the TCPA.

The Court’s clarification on prohibited autodialer technologies is particularly timely and important considering the pervasiveness of automatic dialing technologies that respond to user-provided phone numbers. While this decision should have very little impact on operational decisions businesses make with respect to their TCPA compliance, it provides some comfort that the use of technologies to engage with customers and potential customers via phone and text is not itself prohibited unless the system does so through the use of random or sequential number generation.

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