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Applying Facebook, Court Tosses Suit Over ATDS Allegations



Applying the Supreme Court’s recent decision in Facebook v. Duguid, a North Carolina federal court dismissed a Telephone Consumer Protection Act (TCPA) suit, finding that the plaintiff failed to sufficiently allege the defendant used an automatic telephone dialing system (ATDS).

On July 15, 2013, David Barnett applied for and received a Bank of America (BOA) credit card. He provided the bank with his cellphone number in the application and he later orally granted BOA permission to call his cellphone with autodialers and prerecorded messages during a Jan. 20, 2015 phone call with a bank representative.

Barnett fell behind on payments due on his account. As alleged by Barnett, when a BOA representative called him on May 8, 2019, and explained that the calls would continue because they hadn’t “come to a resolution” on payment, Barnett replied “Okay. That’s fine. All right. Thank you.”

In a later call, Barnett asked the BOA representative to send his bill and “put it in the mail” but did not explicitly discuss contact by phone.

According to Barnett, BOA called him over 300 times between April 2019 and September 2019. He filed suit under the TCPA.

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Following discovery, BOA moved for summary judgment. Pointing to the Facebook decision, the bank argued its dialing technology did not qualify as an ATDS as defined by the statute.

U.S. District Judge Robert J. Conrad Jr. granted the motion.

The record evidence showed that the calls were placed with BOA’s Avaya Proactive Contact system. When an agent uses the system, Avaya delivers telephone numbers in a call list, and when the agent logs in, the Avaya system begins calling customers who have defaulted on their accounts.

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No evidence was presented that the Avaya system generates random or sequential numbers, or that it is capable of doing so. The system selects accounts based on a number of factors, including balance, delinquency stage, recency of payment, recency of contacts and others.

Barnett objected to BOA’s description of the system but did not produce contrary evidence, Conrad said. Although Barnett cited deposition testimony from bank employees stating that the numbers selected for calls were based on several factors, “this very testimony undermines plaintiff’s argument, as the numbers chosen for the calls are selected from a pre-existing list created based on criteria from the dialer administrators, rather than by random or sequential number generators,” Conrad wrote.

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The Supreme Court held in Facebook that, for equipment to qualify as an ATDS, the TCPA “requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.”

BOA “is entitled to summary judgment based on the Supreme Court’s ruling in Facebook, along with the lack of plaintiff’s evidence that the Avaya system uses a random or sequential number generator, and defendant’s affirmative evidence that the system does not use such a number generator,” Conrad concluded.

Barnett’s assertions that he was missing critical information and needed more discovery were unavailing.

Even if BOA’s Avaya system were an ATDS for TCPA purposes, Barnett’s claim would fail because he legally consented to the calls, Conrad added. Barnett provided his cellphone number in his credit card application and expressly granted consent to be contacted during subsequent conversations.

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Barnett argued that he later revoked his consent by stating that he wanted future communications by mail and would call BOA when he had the money to pay his bill, but the court said his communications “were too ambiguous to qualify as a revocation of consent.”

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“[A] plaintiff’s words must clearly revoke consent,” Conrad wrote. “Here, plaintiff requested to be contacted by mail, and stated that he would contact defendant when he was able to pay, but at no point did he directly ask defendant to stop contacting him. In fact, when defendant informed plaintiff that the calls would continue, plaintiff did not argue and even said, ‘Okay.’ Any arguable implication is ambiguous and insufficient for revocation.”

The court granted BOA’s motion for summary judgment.

To read the order in Barnett v. Bank of America, click here.

Why it matters: The North Carolina decision is one of the first cases to rely on the Supreme Court’s Facebook ruling with regard to what constitutes an ATDS under the TCPA and is a clear victory for the defendant. The court also considered whether the plaintiff revoked his consent to receive the calls at issue and found that his requests to be contacted by mail or to call the bank himself were too ambiguous to constitute revocation.

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Enabling developers to create innovative AIs on Messenger and WhatsApp





Every week over 1 billion people connect with businesses on our messaging apps. Many of these conversations are made possible by the thousands of developers who build innovative and engaging experiences on Messenger, Instagram and WhatsApp.

Since opening access to our Llama family of large language models, we’ve seen lots of momentum and innovation with more than 30 million downloads to date. As our messaging services continue to evolve, we believe the technology from Llama and other generative AI models have the potential to enhance business messaging through more natural, conversational experiences.

At Connect Meta announced that developers will be able to build third-party AIs – a term we use to refer to our generative AI-powered assistants – for our messaging services.

We’re making it easy for any developer to get started, so we’re simplifying the developer onboarding process and providing access to APIs for AIs that make it possible to build new conversational experiences within our messaging apps.

All developers will be able to access the new onboarding experience and features on Messenger in the coming weeks. For WhatsApp, we’ll be opening a Beta program in November – if you’re interested in participating please sign up to the waitlist here to learn more.

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We’ll keep everyone updated as we make these tools available to more developers later this year. We look forward to your feedback and seeing what you create.

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Introducing Facebook Graph API v18.0 and Marketing API v18.0





Today, we are releasing Facebook Graph API v18.0 and Marketing API v18.0. As part of this release, we are highlighting changes below that we believe are relevant to parts of our developer community. These changes include announcements, product updates, and notifications on deprecations that we believe are relevant to your application(s)’ integration with our platform.

For a complete list of all changes and their details, please visit our changelog.

General Updates

Consolidation of Audience Location Status Options for Location Targeting

As previously announced in May 2023, we have consolidated Audience Location Status to our current default option of “People living in or recently in this location” when choosing the type of audience to reach within their Location Targeting selections. This update reflects a consolidation of other previously available options and removal of our “People traveling in this location” option.

We are making this change as part of our ongoing efforts to deliver more value to businesses, simplify our ads system, and streamline our targeting options in order to increase performance efficiency and remove options that have low usage.

This update will apply to new or duplicated campaigns. Existing campaigns created prior to launch will not be entered in this new experience unless they are in draft mode or duplicated.

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Add “add_security_recommendation” and “code_expiration_minutes” to WA Message Templates API

Earlier this year, we released WhatsApp’s authentication solution which enabled creating and sending authentication templates with native buttons and preset authentication messages. With the release of Graph API v18, we’re making improvements to the retrieval of authentication templates, making the end-to-end authentication template process easier for BSPs and businesses.

With Graph API v18, BSPs and businesses can have better visibility into preset authentication message template content after creation. Specifically, payloads will return preset content configuration options, in addition to the text used by WhatsApp. This improvement can enable BSPs and businesses to build “edit” UIs for authentication templates that can be constructed on top of the API.

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Note that errors may occur when upgrading to Graph API v18 if BSPs or businesses are taking the entire response from the GET request and providing it back to the POST request to update templates. To resolve, the body/header/footer text fields should be dropped before passing back into the API.

Re-launching dev docs and changelogs for creating Call Ads

  • Facebook Reels Placement for Call Ads

    Meta is releasing the ability to deliver Call Ads through the Facebook Reels platform. Call ads allow users to call businesses in the moment of consideration when they view an ad, and help businesses drive more complex discussions with interested users. This is an opportunity for businesses to advertise with call ads based on peoples’ real-time behavior on Facebook. Under the Ad set Level within Ads Manager, businesses can choose to add “Facebook Reels” Under the Placements section.
  • Re-Launching Call Ads via API

    On September 12, 2023, we’re providing updated guidance on how to create Call Ads via the API. We are introducing documentation solely for Call Ads, so that 3P developers can more easily create Call Ads’ campaigns and know how to view insights about their ongoing call ad campaigns, including call-related metrics. In the future, we also plan to support Call Add-ons via our API platform. Developers should have access to the general permissions necessary to create general ads in order to create Call Ads via the API platform.

    Please refer to developer documentation for additional information.

Deprecations & Breaking Changes

Graph API changes for user granular permission feature

We are updating two graph API endpoints for WhatsAppBusinessAccount. These endpoints are as follows:

  • Retrieve message templates associated with WhatsAppBusiness Account
  • Retrieve phone numbers associated with WhatsAppBusiness Account

With v18, we are rolling out a new feature “user granular permission”. All existing users who are already added to WhatsAppBusinessAccount will be backfilled and will continue to have access (no impact).

The admin has the flexibility to change these permissions. If the admin changes the permission and removes access to view message templates or phone numbers for one of their users, that specific user will start getting an error message saying you do not have permission to view message templates or phone numbers on all versions v18 and older.

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Deprecate legacy metrics naming for IG Media and User Insights

Starting on September 12, Instagram will remove duplicative and legacy, insights metrics from the Instagram Graph API in order to share a single source of metrics to our developers.

This new upgrade reduces any confusion as well as increases the reliability and quality of our reporting.

After 90 days of this launch (i.e. December 11, 2023), we will remove all these duplicative and legacy insights metrics from the Instagram Graph API on all versions in order to be more consistent with the Instagram app.

We appreciate all the feedback that we’ve received from our developer community, and look forward to continuing to work together.

Please review the media insights and user insights developer documentation to learn more.

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Deprecate all Facebook Wi-Fi v1 and Facebook Wi-Fi v2 endpoints

Facebook Wi-Fi was designed to improve the experience of connecting to Wi-Fi hotspots at businesses. It allowed a merchant’s customers to get free Wi-Fi simply by checking in on Facebook. It also allowed merchants to control who could use their Wi-Fi and for how long, and integrated with ads to enable targeting to customers who had used the merchant’s Wi-Fi. This product was deprecated on June 12, 2023. As the partner notice period has ended, all endpoints used by Facebook Wi-Fi v1 and Facebook Wi-Fi v2 have been deprecated and removed.

API Version Deprecations:

As part of Facebook’s versioning schedule for Graph API and Marketing API, please note the upcoming deprecations:

Graph API

  • September 14, 2023: Graph API v11.0 will be deprecated and removed from the platform
  • February 8, 2024: Graph API v12.0 will be deprecated and removed from the platform
  • May 28, 2024: Graph API v13.0 will be deprecated and removed from the platform

Marketing API

  • September 20, 2023: Marketing API v14.0 will be deprecated and removed from the platform
  • September 20, 2023: Marketing API v15.0 will be deprecated and removed from the platform
  • February 06, 2024: Marketing API v16.0 will be deprecated and removed from the platform

To avoid disruption to your business, we recommend migrating all calls to the latest API version that launched today.

Facebook Platform SDK

As part of our 2-year deprecation schedule for Platform SDKs, please note the upcoming deprecations and sunsets:

  • October 2023: Facebook Platform SDK v11.0 or below will be sunset
  • February 2024: Facebook Platform SDK v12.0 or below will be sunset

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Allowing Users to Promote Stories as Ads (via Marketing API)





Before today (August 28, 2023), advertisers could not promote images and/or videos used in Instagram Stories as ads via the Instagram Marketing API. This process created unwanted friction for our partners and their customers.

After consistently hearing about this pain point from our developer community, we have removed this unwanted friction for advertisers and now allow users to seamlessly promote their image and/or video media used in Instagram Stories as ads via the Instagram Marketing API as of August 28, 2023.

We appreciate all the feedback received from our developer community, and hope to continue improving your experience.

Please review the developer documentation to learn more.

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