Duane Morris Class Action Review - 2023 - Report - Page 354
CHAPTER 22
TCPA Class Actions
I.
Executive Summary
The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., has long
been a booming focus of consumer litigation, particularly for class actions. For many
years, plaintiffs have successfully alleged that a defendant used an automatic telephone
dialing system (ATDS) to call or send messages to a cellphone without first obtaining
prior express written consent. An ATDS is “equipment which has the capacity: (i) to
store or produce telephone numbers to be called [or texted], using a random or
sequential number generator, and (2) to dial such numbers.” 47 U.S.C. § 227(1)(A).
In 2021, the U.S. Supreme Court issued its ruling in Facebook, et al. v. Duguid, 141 S.
Ct. 1163 (2021), which adopted a narrow interpretation of what devices count as an
ATDS. Before Duguid, some federal circuits held that equipment could qualify as an
autodialer just because it autodialed stored phone numbers that had not been randomly
or sequentially generated in the first instance. But the Supreme Court rejected this
interpretation and held 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,” because the contrary interpretation “would capture
virtually all modern cell phones, which have the capacity to store telephone numbers to
be called and dial such numbers.” Id. at 1171-73.
Enacted in 1991, the TCPA is a federal statute aimed at protecting consumers from
companies that use ATDS to engage in mass telemarketing methods, including
robocalls. The TCPA originally focused on unwanted telephone calls and faxes.
Specifically, the TCPA prohibits the use of “any telephone facsimile machine, computer,
or other device to send, to a telephone facsimile machine, an unsolicited
advertisement.” 47 U.S.C. § 227(b)(1)(C). The TCPA bars a caller from making a
“prerecorded” phone call to a cellphone without the called party’s consent. 47 U.S.C. §
227(b)(1)(A)(iii).
Since the TCPA was enacted thirty years ago, the methods and technology that
businesses use to engage customers has changed. For example, text messaging is
now used by businesses for many reasons, including to communicate with customers,
solicit consumer feedback, announce product promotions, identify the status of a
delivery, and utilize two-factor security authentication. As a result, courts have
interpreted the TCPA to include text messages. See e.g., Campbell-Ewald Co. v.
Gomez, et al., 136 S. Ct. 663, 667 (2016).
The TCPA also empowers the Federal Communications Commission (FCC) to
“prescribe regulations to implement” the statute, and to create exemptions to statutory
liability “by rule or order.” 47 U.S.C. § 227(b)(2)(B). Under this authority, the FCC has
created a “two-tier system of consent” for TCPA liability, with different kinds of calls
requiring different kinds of consent. First, prerecorded calls that do not include
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Duane Morris Class Action Review – 2023
