Recent SCOTUS “Facebook v. Duguid” Decision and Impacts for Your Outbound Operations

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Earlier this month, the U.S. Supreme Court clarified the definition of an “Automated Telephone Dialing System (ATDS) in the landmark case Facebook v. Duguid.   This is good news for Aspect customers conducting outbound engagement over voice and SMS as Aspect dialing systems do not utilize random or sequential number generators. Therefore, based on the Facebook decision, it does not appear that the Aspect dialing systems would meet the court’s definition of an ATDS for the purpose of the TCPA.

Statement and interpretation from Spencer Demetros, Senior VP General Legal Counsel, Aspect regarding the recent ruling:

On April 1, 2021, the U.S. Supreme Court rendered its decision in the case of Facebook v. Duguid that will have a significant impact on the TCPA legal landscape nationwide. In a unanimous decision, the Court ruled in favor of Defendant Facebook that allegedly sent unsolicited text messages to Plaintiff’s mobile phone without consent. In the opinion that was written by Justice Sotomayor, the Court held that, in order for an outbound dialing system to be considered an “Automated Telephone Dialing System” (“ATDS”), which triggers many of the more onerous requirements and penalties under the TCPA, the dialing system must store or produce telephone numbers using either a random or sequential number generator. 

As Aspect’s dialing systems, including Aspect® Unified IP® and Aspect Via®, do not utilize random or sequential number generators, the Court’s Facebook decision should remove any uncertainty that these systems do not qualify as an ATDS for purposes of the TCPA. 

Of course, it is important that outbound contact centers check with legal counsel as to the interpretation of this recent ruling for your business and the impacts for your dialing strategies.  

As Spencer stated above, Aspect sees some positive outcomes and benefits for Aspect customers utilizing our best-of-breed outbound applications. Here are some of those benefits: 

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  • Increased agent productivity by leveraging predictive dialing technology 
  • Reduced risk options if you want to respond slowly: Precision Dialing and Preview Consent Routing 
  • Improved compliance controls, auditing, and call recording opportunities

If your internal legal interpretation determines that it is now acceptable for you to use predictive dialing technologies for non-consent wireless contact, then Aspect® Unified IP® and Aspect Via® outbound technology can be leveraged to improve agent productivity. By allowing the Aspect outbound system to manage the pacing and call handling, agents spend more time talking with called parties instead of spending time attempting to make contact. 

Agent blending is also another area that could improve agent productivity. If you bring your agents currently working manual outbound attempts onto an Aspect® Unified IP® or Aspect Via® system, they will also be eligible to be blended agents working both inbound and outbound calls as demand dictates. This provides opportunities to increase agent occupancy and productive work time across your entire agent pool. 

If your legal team would like to start slower in a reduced risk fashion and wait to start using predictive dialing again for non-consented calls to wireless devices, then Aspect’s outbound solutions provide you with options. One option is Aspect’s Precision dialing mode, which utilizes Aspect’s predictive dialing logic, but will never allow more than one called party to ever be on hold at a time for each Service/Work Type. Prior to placing a call, Aspect’s Precision dialing mode will check to see if there is any called party on hold for the current Service/Work Type. If there is, the call will not be placed until there is no called party on hold.  

The second reduced risk option is Preview Consent Routing. This allows you to set a consent value for each phone number available on each customer record to force all attempts in Preview dialing mode independent of configuration. This will ensure that those numbers will also be presented to agents requiring their intervention to launch the call. The Consent Routing option can also be used to force a particular phone number on a customer record to be attempted via SMS instead of a voice call if that is the customer’s preferred method of contact. 

By bringing your non-consent wireless contact work onto an Aspect® Unified IP® or Aspect Via® system, you will improve auditing statistics. This allows the system to capture the actual number dialed, ring time, talk time, and switch disposition instead of relying on correct agent capture. This will also allow for call recording and reporting to take place on the same system as your consented and exempt outbound dialing activity, strengthening your auditing controls. Working these previously manual calls on the Aspect system also makes them eligible to be evaluated by Aspect outbound compliance solutions honoring your Do Not Call, harassment, and convenient time to contact rules. 

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 The information provided in this article does not, and is not intended to, constitute legal advice. All of this information, content, and material is for general informational purposes only. If you have any compliance questions related to the topics contained herein, please consult with your own legal counsel