TCPA Suits Decline Post-Duguid, But Legislative Initiatives May Expand Liability
The U.S. Supreme Court’s April 1 decision in Facebook v. Duguid was clear and unanimous: for purposes of the Telephone Consumer Protection Act (TCPA), an automatic telephone dialing system (ATDS) is dialing equipment that uses a random or sequential number generator. That ruling resolved a long-standing circuit split that had rendered the term ATDS effectively meaningless in some jurisdictions. The extremely broad definition of ATDS that previously prevailed in certain circuit courts resulted in over 3,000 TCPA complaints filed annually between 2014 and 2020, and drew a remark from former FCC Commissioner Ajit Pai that the TCPA was “the poster child for lawsuit abuse,” according to an article published in Law360.
Since the Court’s decision to adopt a narrow ATDS definition, TCPA litigation has declined rapidly. In April 2021, the rate of TCPA filings dropped 79% compared to April 2020, and 30% from as recently as March 2021. In 2021 year-to-date, TCPA filings are down 57% compared to last year, and many plaintiffs in TCPA cases voluntarily dismissed their ATDS-based claims following Duguid. However, as this article points out, the TCPA bar is attempting to raise new legal theories to circumvent Duguid, and there has been significant activity on the legislative front.
A bipartisan group in Congress has indicated that it may revisit the TCPA, and in Florida, lawmakers in both houses have unanimously passed legislation that would add a private right of action for autodialed calls and text messages to the state’s telemarketing laws, and would “prohibit all telemarketing calls, text messages, and direct-to-voicemail calls made with ‘an automated system for the selection or dialing of telephone numbers or the playing of a recorded message’ without prior express written consent of the called party.” So far Florida is an outlier, but the authors of this article note that in a post-Duguid environment, businesses will need to be more mindful of state laws governing telemarketing and/or text messages and collections laws.
