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Courts Dispose of TCPA Claims at Summary Judgment Post-Facebook – National Law Review

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August 18, 2021


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Wednesday, August 18, 2021

Back in April we reported on the Supreme Court’s landmark ruling in Facebook v. Duguid, highlighting the court’s narrow definition of an automatic telephone dialing system (“ATDS”). In Facebook the court found “that a necessary feature of an autodialer under [the TCPA] is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” 141 S. Ct. 1163, 1173 (2021). Now, courts are applying Facebook’s holding to dispose of TCPA cases at summary judgment on the ATDS issue. See Timms v. USAA Federal Savings Bank, 2021 WL 2354931 (D.S.C. June 9, 2021); Barnett v. Bank of America, N.A., 2021 WL 2187950 (W.D. N.C. May 28, 2021).

Timms involves a plaintiff arguing that the dialing system at issue qualifies as an ATDS because it “dials numbers automatically without the assistance of an agent.” Timms, 2021 WL 2354931, at *4. First, the court rejected this argument because Facebook instructs that “the automatic dialing capability alone is not enough to qualify a system as an ATDS.” Id. Next, turning to the evidence, the court found that USAA’s dialing equipment – Aspect Unified IP (“Aspect UIP”) and Aspect Agent Initiated Contact (“Aspect AIC”) – did not violate the TCPA because neither system meets Facebook’s narrow definition of an ATDS. Indeed, the evidence showed both systems “are capable of making telephone calls only to specific telephone numbers from dialing lists created and loaded by” USAA. Id., at *7. Specifically – and notable for current TCPA defendants – the record established that USAA’s dialing systems worked as follows:

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  1. “Telephone numbers of all [USAA] members are stored in the Aspect Advanced List Management (‘ALM’)”;

  2. “Each day, [a USAA] representative identifies accounts he or she wishes to call the next day based on different criteria, such as ‘account is overlimit, the period of delinquency, [or] the amount of debt’”;

  3. “ALM creates a list of telephone numbers for members matching those criteria”;

  4. “The numbers are then transferred to Aspect UIP or Aspect AIC”;

  5. “Numbers are dialed from those pre-created lists”;

  6. “If the Aspect UIP system is used, the Aspect UIP system dials the numbers” and “[i]f a person answers, the call is connected to a live representative”; and

  7. “If the Aspect AIC system is used, the [USAA] representative initiates the call to a specific number on the list.”

Based on the evidence, the district court found that the systems at issue “cannot store or produce telephone numbers using a random or sequential number generator.” Id. at *7. Therefore, there was no TCPA violation.

Timms provides a blueprint for TCPA defendants who have been unable to dispose of TCPA cases at the pleading stage. Many SMS and dialing platforms on today’s market do not have the ability to randomly generate numbers to be dialed. The Supreme Court acknowledged this issue in Facebook, but stated “this Court cannot rewrite the TCPA to update it for modern technology.” Facebook, 141 S. Ct. at 1164. Accordingly, in cases where systems mirror the capacity of the Aspect system in Timms, litigants are encouraged to produce discovery on the relevant systems at issue and then bring early motions for summary judgment to dispose of TCPA claims.


©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
National Law Review, Volume XI, Number 230

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Joshua, Managing Member of the firm’s LA office, is a highly experienced trial lawyer with a national practice. He has received awards and national recognition for his innovative approach and specializes in high-stakes, bet-the-company litigation. He represents clients in such industries as financial services, building products, retail, pharmaceuticals, automotive, professional sports, food and beverage, petroleum, chemical manufacturing, health care, high technology, and higher education. He frequently publishes and lectures before national and local bar and industry…

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E. Crystal Lopez Associate Class Action TCPA & Consumer Calling Complex Commercial Litigation

Crystal focuses her practice on class action defense, with an emphasis on consumer fraud, data privacy, marketing and compliance issues claims. Crystal has extensive experience successfully defending against class action claims brought under the Telephone Consumer Protection Act, California Unfair Competition Law, False Advertising Law, the Fair Credit Reporting Act, the Hobby Protection Act and Auto-Renewal Law in both state and federal courts.

She has defended corporate clients against class actions at all stages of litigation, including…

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Esteban Morales, Mintz, Class Action Defense Lawyer, financial services litigation

Esteban is an experienced litigator whose practice is principally focused on class action defense and financial services litigation. Esteban has successfully defended both small and large corporate clients targeted in class action suits alleging violations of the Telephone Consumer Protection Act, California’s Unfair Competition Law, and California’s Invasion of Privacy Act. Results include dismissals at the pleading stage and without any discovery following aggressive defense strategies. In addition to defending class actions, Esteban has represented clients in real…

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Matthew Novian Complex Commercial Litigation Attorney

Matt focuses his practice on complex commercial litigation, including consumer protection matters. He has experience in drafting briefs and letters to opposing parties and in conducting depositions. In addition, Matt maintains an active pro bono practice, in which he counsels clients in matters related to immigration and domestic violence. He was a Law Clerk at Mintz in 2017. 

While attending law school, Matt was a summer associate at a Los Angeles-based law firm, where he worked on matters involving closely held corporations, commercial real estate disputes, and trademark licensing…

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Introducing an Update to the Data Protection Assessment

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Over the coming year, some apps with access to certain types of user data on our platforms will be required to complete the annual Data Protection Assessment. We have made a number of improvements to this process since our launch last year, when we introduced our first iteration of the assessment.

The updated Data Protection Assessment will include a new developer experience that is enhanced through streamlined communications, direct support, and clear status updates. Today, we’re sharing what you can expect from these new updates and how you can best prepare for completing this important privacy requirement if your app is within scope.

If your app is in scope for the Data Protection Assessment, and you’re an app admin, you’ll receive an email and a message in your app’s Alert Inbox when it’s time to complete the annual assessment. You and your team of experts will then have 60 calendar days to complete the assessment. We’ve built a new platform that enhances the user experience of completing the Data Protection Assessment. These updates to the platform are based on learnings over the past year from our partnership with the developer community. When completing the assessment, you can expect:

  • Streamlined communication: All communications and required actions will be through the My Apps page. You’ll be notified of pending communications requiring your response via your Alerts Inbox, email, and notifications in the My Apps page.

    Note: Other programs may still communicate with you through the App Contact Email.

  • Available support: Ability to engage with Meta teams via the Support tool to seek clarification on the questions within the Data Protection Assessment prior to submission and help with any requests for more info, or to resolve violations.

    Note: To access this feature, you will need to add the app and app admins to your Business Manager. Please refer to those links for step-by-step guides.

  • Clear status updates: Easy to understand status and timeline indicators throughout the process in the App Dashboard, App Settings, and My Apps page.
  • Straightforward reviewer follow-ups: Streamlined experience for any follow-ups from our reviewers, all via developers.facebook.com.

We’ve included a brief video that provides a walkthrough of the experience you’ll have with the Data Protection Assessment:

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The Data Protection Assessment elevates the importance of data security and helps gain the trust of the billions of people who use our products and services around the world. That’s why we are committed to providing a seamless experience for our partners as you complete this important privacy requirement.

Here is what you can do now to prepare for the assessment:

  1. Make sure you are reachable: Update your developer or business account contact email and notification settings.
  2. Review the questions in the Data Protection Assessment and engage with your teams on how best to answer these questions. You may have to enlist the help of your legal and information security points of contact to answer some parts of the assessment.
  3. Review Meta Platform Terms and our Developer Policies.

We know that when people choose to share their data, we’re able to work with the developer community to safely deliver rich and relevant experiences that create value for people and businesses. It’s a privilege we share when people grant us access to their data, and it’s imperative that we protect that data in order to maintain and build upon their trust. This is why the Data Protection Assessment focuses on data use, data sharing and data security.

Data privacy is challenging and complex, and we’re dedicated to continuously improving the processes to safeguard user privacy on our platform. Thank you for partnering with us as we continue to build a safer, more sustainable platform.

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Resources for Completing App Store Data Practice Questionnaires for Apps That Include the Facebook or Audience Network SDK

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Resources for Completing App Store Data Practice Questionnaires for Apps That Include the Facebook or Audience Network SDK

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Resources for Completing App Store Data Practice Questionnaires for Apps That Include the Facebook or Audience Network SDK

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Updated July 18: Developers and advertising partners may be required to share information on their app’s privacy practices in third party app stores, such as Google Play and the Apple App Store, including the functionality of SDKs provided by Meta. To help make it easier for you to complete these requirements, we have consolidated information that explains our data collection practices for the Facebook and Audience Network SDKs.

Facebook SDK

To provide functionality within the Facebook SDK, we may receive and process certain contact, location, identifier, and device information associated with Facebook users and their use of your application. The information we receive depends on what SDK features 3rd party applications use and we have structured the document below according to these features.

App Ads, Facebook Analytics, & App Events

Facebook App Events allow you to measure the performance of your app using Facebook Analytics, measure conversions associated with Facebook ads, and build audiences to acquire new users as well as re-engage existing users. There are a number of different ways your app can use app events to keep track of when people take specific actions such as installing your app or completing a purchase.

With Facebook SDK, there are app events that are automatically logged (app installs, app launches, and in-app purchases) and collected for Facebook Analytics unless you disable automatic event logging. Developers determine what events to send to Facebook from a list of standard events, or via a custom event.

When developers send Facebook custom events, these events could include data types outside of standard events. Developers control sending these events to Facebook either directly via application code or in Events Manager for codeless app events. Developers can review their code and Events Manager to determine which data types they are sending to Facebook. It’s the developer’s responsibility to ensure this is reflected in their application’s privacy policy.

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Advanced Matching

Developers may also send us additional user contact information in code, or via the Events Manager. Advanced matching functionality may use the following data, if sent:

  • email address, name, phone number, physical address (city, state or province, zip or postal code and country), gender, and date of birth.
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Facebook Login

There are two scenarios for applications that use Facebook Login via the Facebook SDK: Authenticated Sign Up or Sign In, and User Data Access via Permissions. For authentication, a unique, app-specific identifier tied to a user’s Facebook Account enables the user to sign in to your app. For Data Access, a user must explicitly grant your app permission to access data.

Note: Since Facebook Login is part of the Facebook SDK, we may collect other information referenced here when you use Facebook Login, depending on your settings.

Device Information

We may also receive and process the following information if your app is integrated with the Facebook SDK:

  • Device identifiers;
  • Device attributes, such as device model and screen dimensions, CPU core, storage size, SDK version, OS and app versions, and app package name; and
  • Networking information, such as the name of the mobile operator or ISP, language, time zone, and IP address.

Audience Network SDK

We may receive and process the following information when you use the Audience Network SDK to integrate Audience Network ads in your app:

  • Device identifiers;
  • Device attributes, such as device model and screen dimensions, operating system, mediation platform and SDK versions; and
  • Ad performance information, such as impressions, clicks, placement, and viewability.

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