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Consumer Reports: New Supreme Court ruling creates loophole that will open floodgates to robocalls. Congress needs to close it.

WASHINGTON, D.C. — The Supreme Court ruled today that technology that sends potentially unlimited numbers of automated recorded calls and texts to consumers’ cell phones does not qualify as an “autodialer,” and thus is not subject to the core legal requirement that these calls and texts be made only with the consumer’s consent, a cornerstone of the Telecommunications Consumer Protection Act.


Resting on a strained reading of the punctuation in the definition of “autodialer,” the Court ruled that the technology involved, which Facebook was using to send automated texts to its users, falls through the cracks of the definition. As a result, prior consent is not required for unleashing a potentially unlimited number of calls and texts using this technology, and there is no enforceable way for a consumer to stop them.


“For years, robocalls have invaded consumers’ privacy and subjected us all to incessant harassment,” said George Slover, senior policy counsel at Consumer Reports. “The Telephone Consumer Protection Act was enacted 30 years ago to stop these robocalls unless the caller had the consumer’s consent. Callers have been working ever since to find ways to evade this requirement, by claiming that what they were doing, or how they were doing it, is not covered by the law. They have now succeeded in punching a huge loophole in the law’s core protection. Congress needs to fix this, and fast. Or consumers will be vulnerable to their phones being tied up by a potentially constant flood of robocalls and texts, with no way to stop it.”


Facebook brought the appeal, after having been found to have violated the TCPA by sending texts to Noah Duguid, alerting him to someone logging in to his account using a device Facebook did not recognize as belonging to him. Mr. Duguid did not ask for these texts. He did not even have a Facebook account, and had never given Facebook his phone number. He and asked Facebook repeatedly to stop these texts, without success.


As the lower appeals court noted in its ruling in favor of Mr. Duguid, and as Consumer Reports noted in an amicus brief to the Supreme Court that it joined, the reading of the definition that Facebook was urging did not make logical sense. It would make it impossible for a caller to ever comply with the consent requirement, since making calls randomly or sequentially does not involve knowing who is being called. The Court makes no mention of this point in its opinion, focusing solely on its reading of the punctuation.