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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 Briones Litigation Lawyer Mintz

Member / Managing Member, Los Angeles Office

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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Creating Apps with App Use Cases

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With the goal of making Meta’s app creation process easier for developers to create and customize their apps, we are announcing the rollout of an updated process using App Use Cases instead of the former product-focused process. App Use Cases will enable developers to quickly create apps by selecting the use case that best represents their reason for creating an app.

Currently, the product-focused app creation process requires developers to select an app type and individually request permission to API endpoints. After listening to feedback from developers saying this process was, at times, confusing and difficult to navigate, we’re updating our approach that’s based on App Use Cases. With App Use Cases, user permissions and features will be bundled with each use case so developers can now confidently select the right data access for their needs. This change sets developers up for success to create their app and navigate app review, ensuring they only get the exact data access they need to accomplish their goals.

Starting today Facebook Login will be the first use case to become available to developers. This will be the first of many use cases that will be built into the app creation process that will roll out continually in 2023. For more information please reference our Facebook Login documentation.

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Understanding Authorization Tokens and Access for the WhatsApp Business Platform

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The WhatsApp Business Platform makes it easy to send WhatsApp messages to your customers and automate replies. Here, we’ll explore authentication using the Cloud API, hosted by Meta.

We’ll start with generating and using a temporary access token and then replace it with a permanent access token. This tutorial assumes you’re building a server-side application and won’t need additional steps to keep your WhatsApp application secrets securely stored.

Managing Access and Authorization Tokens

First, let’s review how to manage authorization tokens and safely access the API.

Prerequisites

Start by making sure you have a developer account on Meta for Developers. You’ll also need WhatsApp installed on a mobile device to send test messages to.

Creating an App

Before you can authenticate, you’ll need an application to authenticate you.

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Once you’re signed in, you see the Meta for Developers App Dashboard. Click Create App to get started.

Next, you’ll need to choose an app type. Choose Business.

After that, enter a display name for your application. If you have a business account to link to your app, select it. If not, don’t worry. The Meta for Developers platform creates a test business account you can use to experiment with the API. When done, click Create App.

Then, you’ll need to add products to your app. Scroll down until you see WhatsApp and click the Set up button:

Finally, choose an existing Meta Business Account or ask the platform to create a new one and click Continue:

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And with that, your app is created and ready to use. You’re automatically directed to the app’s dashboard.

Note that you have a temporary access token. For security reasons, the token expires in less than 24 hours. However, you can use it for now to test accessing the API. Later, we’ll cover how to generate a permanent access token that your server applications can use. Also, note your app’s phone number ID because you’ll need it soon.

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Click the dropdown under the To field, and then click Manage phone number list.

In the popup that appears, enter the phone number of a WhatsApp account to send test messages to.

Then, scroll further down the dashboard page and you’ll see an example curl call that looks similar to this:

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curl -i -X POST https://graph.facebook.com/v13.0//messages -H 'Authorization: Bearer ' -H 'Content-Type: application/json' -d '{ "messaging_product": "whatsapp", "to": "", "type": "template", "template": { "name": "hello_world", "language": { "code": "en_US" } } }'

Note that the Meta for Developers platform inserts your app’s phone number ID and access token instead of the and placeholders shown above. If you have curl installed, paste the command into your terminal and run it. You should receive a “hello world” message in WhatsApp on your test device.

If you’d prefer, you can convert the curl request into an HTTP request in your programming language by simply creating a POST request that sets the Authorization and Content-Type headers as shown above, including the JSON payload in the request body.

Since this post is about authentication, let’s focus on that. Notice that you’ve included your app’s access token in the Authorization header. For any request to the API, you must set the Authorization header to Bearer .

Remember that you must use your token instead of the placeholder. Using bearer tokens will be familiar if you’ve worked with JWT or OAuth2 tokens before. If you’ve never seen one before, a bearer token is essentially a random secret string that you, as the bearer of the token, can present to an API to prove you’re allowed to access it.

Failure to include this header causes the API to return a 401 Unauthorized response code.

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Creating a Permanent Access Token

Knowing that you need to use a bearer token in the Authorization header of an HTTP request is helpful, but it’s not enough. The only access token you’ve seen so far is temporary. Chances are that you want your app to access the API for more than 24 hours, so you need to generate a longer-lasting access token.

Fortunately, the Meta for Developers platform makes this easy. All you need to do is add a System User to your business account to obtain an access token you can use to continue accessing the API. To create a system user, do the following:

  • Go to Business Settings.

  • Select the business account your app is associated with.
  • Below Users, click System Users.
  • Click Add.
  • Name the system user, choose Admin as the user role, and click Create System User.
  • Select the whatsapp_business_messaging permission.
  • Click Generate New Token.
  • Copy and save your token.

Your access token is a random string of letters and numbers. Now, try re-running the earlier request using the token you just created instead of the temporary one:

curl -i -X POST https://graph.facebook.com/v13.0//messages -H 'Authorization: Bearer ' -H 'Content-Type: application/json' -d '{ "messaging_product": "whatsapp", "to": "", "type": "template", "template": { "name": "hello_world", "language": { "code": "en_US" } } }'

Your test device should receive a second hello message sent via the API.

Best Practices for Managing Access Tokens

It’s important to remember that you should never embed an App Access Token in a mobile or desktop application. These tokens are only for use in server-side applications that communicate with the API. Safeguard them the same way you would any other application secrets, like your database credentials, as anyone with your token has access to the API as your business.

If your application runs on a cloud services provider like AWS, Azure, GCP, or others, those platforms have tools to securely store app secrets. Alternatively there are freely-available secret stores like Vault or Conjur. While any of these options may work for you, it’s important to evaluate your options and choose what works best for your setup. At the very least, consider storing access tokens in environment variables and not in a database or a file where they’re easy to find during a data breach.

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Conclusion

In this post, you learned how to create a Meta for Developers app that leverages the WhatsApp Business Platform. You now know how the Cloud API’s bearer access tokens work, how to send an access token using an HTTP authorization header, and what happens if you send an invalid access token. You also understand the importance of keeping your access tokens safe since an access token allows an application to access a business’ WhatsApp messaging capabilities.

Why not try using the Cloud API, hosted by Meta if you’re considering building an app for your business to manage WhatsApp messaging? Now that you know how to obtain and use access tokens, you can use them to access any endpoint in the API.

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Now people can share directly to Instagram Reels from some of their favorite apps

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More people are creating, sharing and watching Reels than ever before. We’ve seen the creator community dive deeply into video content – and use it to connect with their communities. We’re running a limited alpha test that lets creators share video content directly from select integrated apps to Instagram Reels. Now, creators won’t be interrupted in their workflow, making it easier for them share share and express themselves on Reels.

“With the shift to video happening across almost all online platforms, our innovative tools and services empower creativity and fuel the creator economy and we are proud to be able to offer a powerful editing tool like Videoleap that allows seamless content creation, while partnering with companies like Meta to make sharing content that much easier.”- Zeev Farbman, CEO and co-founder of Lightricks.

Starting this month, creators can share short videos directly to Instagram Reels from some of their favorite apps, including Videoleap, Reface, Smule, VivaVideo, SNOW, B612, VITA and Zoomerang, with more coming soon. These apps and others also allow direct sharing to Facebook , which is available for any business with a registered Facebook App to use.

We hope to expand this test to more partners in 2023. If you’re interested in being a part of that beta program, please fill out this form and we will keep track of your submission. We do not currently have information to share about general availability of this integration.

Learn more here about sharing Stories and Reels to Facebook and Instagram and start building today.

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FAQs

Q. What is the difference between the Instagram Content Publishing API and Instagram Sharing to Reels?

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A: Sharing to Reels is different from the Instagram Content Publishing API, which allows Instagram Business accounts to schedule and publish posts to Instagram from third-party platforms. Sharing to Reels is specifically for mobile apps to display a ‘Share to Reels’ widget. The target audience for the Share to Reels widget is consumers, whereas the Content Publishing API is targeted towards businesses, including third-party publishing platforms such as Hootsuite and Sprout Social that consolidate sharing to social media platforms within their third-party app.

Q: Why is Instagram partnering with other apps?

A: Creators already use a variety of apps to create and edit videos before uploading them to Instagram Reels – now we’re making that experience faster and easier. We are currently doing a small test of an integration with mobile apps that creators know and love, with more coming soon.

Q: How can I share my video from another app to Reels on Instagram?

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A: How it works (Make sure to update the mobile app you’re using to see the new Share to Reels option):

  • Create and edit your video in one of our partner apps
  • Once your video is ready, tap share and then tap the Instagram Reels icon
  • You will enter the Instagram Camera, where you can customize your reel with audio, effects, Voiceover and stickers. Record any additional clips or swipe up to add an additional clip from your camera roll.
  • Tap ‘Next’ to add a caption, hashtag, location, tag others or use the paid partnerships label.
  • Tap ‘Share’. Your reel will be visible where you share reels today, depending on your privacy settings.
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Q: How were partners selected?

A. We are currently working with a small group of developers that focus on video creation and editing as early partners. We’ll continue to expand to apps with other types of creation experiences.

Q: When will other developers be able to access Sharing to Reels on Instagram?

A: We do not currently have a date for general availability, but are planning to expand further in 2023.

Q: Can you share to Facebook Reels from other apps?

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A: Yes, Facebook offers the ability for developers to integrate with Sharing to Reels. For more information on third-party sharing opportunities, check out our entire suite of sharing offerings .

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