The State of TCPA Claims in 2024
Our firm used to handle claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., (the “TCPA”). However, we no longer do so because a series of Federal Court decisions essentially gutted the TCPA, which has also failed to be amended to keep up with technological advances. This article briefly explains the state of TCPA claims as of 2024.
The TCPA is a Federal law, which makes it unlawful to call any telephone number assigned to a cellular telephone service using an artificial voice, prerecorded message, or an automatic dialing system without prior express consent. 47 U.S.C. § 227(b)(1). The FCC and a number of federal courts have held that a text message also constitutes a “call” under the TCPA. See, e.g., Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (holding that text messaging is a form of communication between telephones and therefore falls within the definition of a “call”).
A consumer may be able to recover between $500 and $1,500 in statutory damages for each call or text that violates the TCPA. “The TCPA is essentially a strict liability statute” that “does not require any intent for liability except when awarding treble damages.” Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011). However, businesses can avoid liability under the TCPA by obtaining “prior express consent” from individuals to receive calls and texts that would otherwise violated it.
“[A] TCPA claim is comprised of the following elements: ‘(1) a call [or text] was made to a cell or wireless phone, (2) by the use of an automatic dialing system or an artificial or prerecorded voice, and (3) without prior express consent of the called party.’” Witchard v. Allied Interstate, LLC, No. 8:15-cv-1109, 2015 WL 6817163, at *2 (M.D. Fla. Nov. 6, 2015) (quotation omitted).
An automatic dialing system (“ATDS”) is defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” 47 U.S.C. § 227(a)(l)(A)–(B). For many years there was a split among the federal courts on how to interpret the TCPA’s definition of an ATDS. Some courts adopted a liberal interpretation, while others adopted a more narrow interpretation.
In a Big Win for Business the United States Supreme Court Guts the TCPA
In 2021, the United States Supreme Court resolved the split in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021). The Supreme Court’s ruling in Facebook, Inc. changes the kinds of dialing technology that meet the definition of an ATDS. In Facebook, Inc., the Court adopted the more restrictive, statutory definition of an ATDS, stating, “[w]e hold that a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Facebook, Inc., 141 S. Ct. at 1173.
Essentially, this means that the only dialers that are subject to the TCPA’s restrictions are those that actually use random or sequential number generation in order to store or dial phone numbers. It is believed that as a result, most modern dialers likely will not be considered ATDS. As one commentator noted, “[t]he Facebook, Inc. decision was a huge win for businesses. Businesses are likely relieved because most dialing systems today do not have a random or sequential number generator. …. Most numbers today are generated from a preprogrammed list.” Comment, No Caller ID: The Impact of Consumer Protection Post Facebook, Inc. v. Duguid, 5 Bus., Entrepreneurship & Tax L. Rev. 161, 170 (2021) (emphasis added).
Remaining Viability of TCPA Claims v. Technological Advances
As we understand it, the only viable TCPA claims post-Facebook, Inc. are ones based on calls using prerecorded voice messages or using artificial voices. In other words, the elements of such claims would be: (1) a call [or text] was made to a cell or wireless phone, (2) by the use of an artificial or prerecorded voice, and (3) without prior express consent of the called party.
However, the remaining problem is that the TCPA, which was first enacted in 1990, has not been meaningfully amended to keep up with the technological advances in the 34 years since it was passed. For example, it is now possible to spoof or fake caller-ID so that the number appearing on your phone is not the actual phone number calling you.
Knowing that many people do not answer unexpected calls from out of state numbers, spammers frequently spoof caller-ID so that it appears the call is originating from a local area code, which people are more likely to answer. As such, the biggest problem with TCPA claims, even those still viable post-Facebook, Inc. is that most of the time people do not know who is calling them.
Moreover, since most medium to large corporations have in-house attorneys that advise them on these issues, in our experience, many of the current spam calls are fly-by-night operations that are long gone by the time they can be identified or the spam calls are originating overseas making it difficult to subject the caller to jurisdiction in the United States.