TCPA Declaratory Ruling and Order. On July 10, 2015, the FCC released its ruling with clarification of a number of TCPA issues including the definition of autodialer, liability for calls made to reassigned phone numbers, a consumer right to revoke consent by any reasonable means, and new exceptions for financial and healthcare related calls. The FCC invoked its authority under the TCPA to exempt from the consent requirement various “free to end user” communications (no charge to recipient of call) that are “pro consumer messages“ made by certain entities regarding time sensitive financial information and health treatment related messages. Arbitration Clauses. An enforceable arbitration clause in the terms of service of companies using SMS text messaging may help mitigate the costs and risk of exposure to TCPA class action litigation. On April 1, 2021 the Supreme Court issued its highly anticipated decision in Facebook, Inc v. Duguid, resolving a long-standing circuit split on the definition of an automatic telephone dialing system (ATDS or autodialer) under the TCPA. The Court ruled that to qualify as an ATDS under the TCPA, a device must have the capacity to either (1) store a telephone number using a random or sequential number generator or (2) produce a telephone number using a random or sequential number generator. Reversing the Ninth Circuit, the Court concluded that merely having the capacity to store numbers and dial them automatically is not enough to make a device qualify as an ATDS. This case had been anticipated by many who have had to figure out what they could do when using phone calls or text messaging to reach customers. Facebook was accused of violating the TCPA’s prohibition on using an ATDS. Duguid claimed that Facebook sent him text messages over a period of 10 months without his consent alerting him that someone was trying to access his Facebook account even though he did not have a Facebook account.
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