We’ve been closely watching the evolution of telemarketing laws since the Supreme Court’s 2021 decision in Facebook v. Duguid, which held that most modern dialing systems are not autodialers—or “automated telephone dialing systems” under the Telephone Consumer Protection Act (TCPA).  The Facebook decision led to a flurry of legislative activity at both the state and federal levels. Florida and Oklahoma enacted state-level statutes that have been interpreted to cover modern dialing systems, and Georgia, Washington, Michigan and other states have considered similar legislation. At the federal level, a new bill was proposed in July 2022 that would have amended the TCPA to cover 21st century dialing technologies—not just those using a random or sequential number generator. The federal bill has not made any meaningful progress, but a recent request from FCC Chairwoman Jessica Rosenworcel may prompt the legislature to act.

Just before the end of the year, on December 23, 2022, Chairwoman Rosenworcel requested, in relevant part, that Congress fix the definition of an autodialer. In her letter, Chairwoman Rosenworcel explained that the Supreme Court’s decision in Facebook effectively removed most modern dialing systems from TCPA scrutiny, and the decision effectively renders the TCPA ineffective in combating robocalls and robotexts. Chairwoman Rosenworcel’s call for Congress to “fix” the TCPA has been echoed by others in the legislature, including Senator Ed Markey, a co-author of the TCPA, who stated that he intended to introduce legislation amending the TCPA to “fix the Court’s error.”

Until Congress does take action, the Supreme Court’s decision in the Facebook case is controlling calls and texts made from modern dialing technologies that can store and dial numbers but do not use a random or sequential number generator are not currently covered by the text of the TCPA. That said, businesses should continue to maintain careful compliance of their telemarketing efforts to address this evolving regulatory environment. As we’ve noted previously, state telemarketing laws could still apply to calls and messages sent from modern smartphones, and if this new effort from Chairwoman Rosenworcel is successful, Congress could amend the TCPA to make it clear that they intend for the law to expand to cover modern dialing systems. We will continue monitoring these developments. Subscribe to ropesdataphiles.com for further updates and contact our Data, Privacy and Cybersecurity team if you have any questions.