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May 11, 2021

Takeaways from the SCOTUS Decision on Facebook v. Duguid

You’ve likely recently heard or seen coverage about a landmark U.S. Supreme Court (SCOTUS) decision involving Facebook, the use of sequential number generators, and the Telephone Consumer Protection Act (TCPA). We’ve received a number of requests about the ramifications of the decision and we are pleased to provide the following overview.

The Issue at Hand

The Telephone Consumer Protection Act (TCPA) restricts the making of telemarketing calls or texts with automatic dialers or artificial or prerecorded messages to consumers without their permission. The statute was designed to protect people from harassing phone calls and scams, specifically barring the use of an “automatic telephone dialing system” (ATDS) to contact consumers.

In Facebook v. Duguid, the plaintiff argued that they were being subjected to unwanted text messages, but the court found the technology Facebook used did not qualify as an autodialer within the meaning of the TCPA because it did not use a random or sequential number generator. Essentially, the Court ruled that a mobile device or other modern technologies that merely store and automatically dial do not qualify as autodialers, and text messages sent using these technologies are effectively removed from TCPA applicability.

Impact on Twilio Customers

In the past, the threat of TCPA litigation was a cloud hanging over the heads of legitimate businesses and organizations because certain courts used an overbroad definition of autodialer that included dialing from a list of stored numbers. The Facebook decision means that Twilio customers who do not rely on random or sequential number generators to send calls or texts are less at risk for TCPA-based litigation.

While this decision has the potential to result in an increase in unwanted robocalls, Twilio remains committed to doing our part to ensure that end users are protected not only from illegal robocalls, but also from spammed texts. We are a member of USTelecom’s Industry Traceback Group, where major stakeholders in the telecommunications industry come together to actively trace and identify the source of illegal robocalls, helping to prevent illegal robocalls from the start. Twilio also co-chairs the Robocalling and Communication ID Spoofing group for the Alliance for Telecommunications Industry Solutions (ATIS), in addition to having a seat on the board of directors. ATIS, along with the Internet Engineering Task Force and the SIP (Session Initiation Protocol) Forum, all work together as an industry consortium with the telecommunications industry to develop and implement the SHAKEN/STIR protocol to eradicate illegal spoofing. Twilio also is a member of the Messaging, Malware and Mobile Anti-Abuse Working Group (M3AAWG), the premier industry group dedicated to combating bots, malware, spam, viruses, denial-of-service attacks and other online exploitation across platforms, including mobile, email, voice and emerging platforms such as social messaging. In 2019, the Federal Communications Commission (FCC) appointed Twilio to the re-chartered North American Numbering Council (NANC). The NANC is a federal advisory committee that was created to advise the FCC on numbering issues in the United States and to make recommendations that foster efficient and impartial number administration. The NANC is composed of representatives of telecommunications carriers, regulators, cable providers, VoIP providers, industry associations, vendors and consumer advocates. Twilio was also a strong supporter of the TRACED Act, which gives the FCC and voice providers more ammunition to combat illegal robocalls. Lastly, Twilio is a signed onto the state attorneys general agreement to combat illegal robocalls.

Next Steps

Illegal robocalls present a complex problem that requires a collaborative approach. No single “silver bullet” will stop unwanted calls. It takes combined efforts of public policy, law enforcement, industry cooperation, and innovation -- similar to the combined efforts that were used to combat and successfully mitigate spam email. A bipartisan group of lawmakers has already expressed concern about the Facebook decision and its impact on consumers. Twilio looks forward to working with lawmakers and the broader telecommunications ecosystem to keep delivering the messages consumers want, while protecting them from those they don’t.

Rebecca Murphy Thompson is head of North American Communications Policy, Global Public Policy and Government Affairs for Twilio. @RMTMobile