Removing Barriers Blog

CUNA files brief with U.S. Supreme Court in Facebook v. Duguid re: TCPA definition of ATDS
Posted September 11, 2020 by CUNA Advocacy

CUNA filed a brief with the U.S. Supreme Court Friday in Facebook Inc. v. Duguid supporting a narrow scope for the Telephone Consumer Protection Act’s (TCPA) definition of an automatic telephone dialing system (ATDS). The brief raises concerns about the TCPA’s effect on credit unions who may rely on technology systems to efficiently and effectively contact their members with important information regarding their accounts, including mandatory servicing calls and fraud alerts.

Confusion about the scope of the ATDS definition and use of efficient autodialing equipment to contact member-owners has led to an uptick in TCPA lawsuits filed against credit unions, including three recent cases filed at the federal level. 

“With the threat of litigation against leanly staffed credit unions, consumers run the risk of missing out on important information regarding their accounts. It is critically important that the ATDS definition is clarified so that communications from credit unions – and other upstanding institutions like those in the healthcare and educational fields– are not hindered from sharing vital information,” said CUNA President/CEO Jim Nussle. “We stand alongside countless organizations such as Facebook in need of technology options that allow them to effectively contact their customers.”  

CUNA supports the statutorily consistent narrow interpretation of the ATDS definition as it would bring clarity to the regulatory and legal landscape that America’s credit unions are facing.

The brief supports Facebook’s argument that consumer harms can be avoided by narrowly defining an ATDS to apply only to equipment that has the capacity to generate random or sequential numbers and to automatically call those numbers.

A number of lower courts agree with this position, but cases like the 9th Circuit’s decision against Facebook in 2019 established an overly broad definition of ATDS, ostensibly to mitigate the growing use of robocalls.

CUNA maintains that a broad definition of ATDS “does nothing to curb illegal robocalls by bad actors,” as noted in the brief, but “it does further open the floodgates of litigation against credit unions and other legitimate companies.” 

CUNA has also called for clarification on this matter from the Federal Communications Commission (FCC) since its 2015 TCPA rulemaking.