Supreme Court to Determine Scope of Autodialer for TCPA
In 2017, the Telephone Consumer Protection Act (TCPA) class action filed against Facebook was dismissed. The subsequent appeal led to a reversal of the decision in 2019, as the U.S. Court of Appeals for the Ninth Circuit reaffirmed their earlier decision in Marks v. Crunch San Diego, LLC. In Marks, the court had found that the adverbial phrase only modified the verb "to produce" a grammatic construction which would mean that automatically dialing any number—whether entered or generated—would meet the requirements of the TCPA's definition of autodialer, thus violating the TCPA whenever used to communicate with consumers.
The TCPA—which restricts the unsolicited use of automated phone calls, and text messages—originally had two exceptions: (1) calls made for emergency purposes; and (2) calls made with the prior express consent of the consumer. In 2015, Congress amended the TCPA to include a third exception: calls made solely to collect on a debt owed to, or guaranteed by, the United States, which was recently held unconstitutional.
In Duguid v. Facebook the court held that the broad definition of an ATDS should be applied and the amended language was unconstitutional. The case has now been granted certiorari and will be heard by the U.S. Supreme Court in October.
In the meantime, a number of organizations have submitted briefs for and against the dueling TCPA interpretations. While some of these only discuss the constitutionality of the amendment, others are taking advantage of the opportunity to have the Supreme Court decide not just on the interpretation of the language of the TCPA, but also its legality.
For more on Facebook v. Duguid, and the impact a ruling may have on the credit industry's future use of predictive dialers, listen to Hinshaw's John Ryan in an appearance on a Great Lakes Credit and Collection Association podcast.
How the New California Department of Financial Protection and Innovation Impacts Debt Collectors
A new bill has been approved by both chambers of the California legislature and signed into law by Governor Newsom. Starting January 1, 2022, all debt collectors operating in the state of California will be required to:
- Maintain a license
- Pay an application fee
- Undergo a criminal background check
- Include the license number in all written and digital communications with debtors
- Maintain a surety bond
- Comply with reporting requirements
- Pay the commissioner its pro rata share of all costs and expenses reasonably incurred during any administrative activity
The bill provides the Department of Financial Protection and Innovation—currently called the Department of Business Oversight—the authority to monitor the...
