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Facebook v Duguid

It’s no joke, the Supreme Court ruling on April Fool’s Day is fantastic news!

On April 1, 2021, the Supreme Court issued its opinion in the much-anticipated Telephone Consumer Protection Act (TCPA) case, Facebook v. Duguid. Before now, courts across the country had been split on the definition of an autodialer under the TCPA, complicating regulatory compliance and making potential litigation unpredictable.  But not anymore.  Upland Mobile Messaging, like many other text messaging software applications, does not generate random or sequential numbers. By restricting an “autodialer” to only equipment that relies on a random or sequential number generator, the Supreme Court’s decision means using Upland Mobile Messaging for your text messaging program doesn’t create the potential for undue liability under the TCPA, so long as an artificial or pre-recorded voice isn’t used. Upland, our customers, and their stakeholders can rest easier, knowing there’s lower risk.

How did this all come about? In 2015, Noah Duguid filed a suit against Facebook when he received text notifications from Facebook indicating that an attempt had been made to log in to his account from a new device. The problem was that Duguid did not have (and had never had) a Facebook account/had never given Facebook his phone number. Facebook speculated that Duguid’s cellphone number had previously belonged to a user who had opted-in to login notifications and now that Duguid had that “recycled” number, he was receiving the notifications.

Duguid filed the suit under the TCPA, claiming that the notifications were unsolicited and sent using a form of automated technology. The trial court sided with Facebook, while the Ninth Court of Appeals sided with Noah Duguid. The Supreme Court found that while Facebook had transmitted unwanted text messages, its security notification feature fell outside the law, because to qualify as an autodialer under the TCPA, a device must have the capacity either to store or to produce a telephone number using a “random or sequential number generator.”

So, what’s the big deal? In a nutshell, the definition. The Supreme Court echoed a concern voiced by Facebook and other industry experts that calling an autodialer any device that merely stores and dials numbers is too broad. So broad in fact, that it could apply to virtually every modern cell phone, which could expand the reach of TCPA liability far beyond the original law. Under that interpretation, ordinary people could face steep fines for using cellphone functionality so commonplace one rarely thinks about it – like speed dial and auto-reply (think “do not disturb” responses). On the flip side, Mr. Duguid’s attorneys and consumer advocates argued that the narrow definition adopted by the Supreme Court could create a flood of unsolicited calls and texts by not disqualifying the technology predominantly in use by telemarketers today – predictive dialing technology – to call or text targeted customers.

While the Supreme Court noted that its job was merely to interpret the law as it was written, and that it is up to Congress to address technological changes and any consumer issues that arise, the wireless industry isn’t leaving as much to chance. It has taken on self-regulation to help reduce unsolicited messaging.

In the fall of 2020, 10DLC entered the scene and made it possible for the carriers to discontinue support for shared short codes, where bad actors were exploiting the carriers’ inability to set boundaries on the number of and types of companies sharing a number. The low-cost alternative to a shared short code, 10DLC, requires a vetting process that includes the size of an organization, its industry, and its messaging use case(s) to determine a trust score – on which the rate messages are sent and the daily maximum number of messages an organization can send depends. The hope is that this industry regulation will reduce the frequency of spam text messaging by forcing telemarketers and bad actors to shed their anonymity.

Ultimately, the Supreme Court’s decision and recent changes within the wireless industry are fantastic developments for Upland and our customers. Upland has always taken regulatory compliance seriously, and these decisions make compliance uniform and predictable.  And, most importantly, these developments magnify that Upland Mobile Messaging is easy, secure, and dependable, helping people and organizations communicate willingly with each other.

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