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Company Using Predictive Dialer Prevails in Post-Facebook Decision – National Law Review



Tuesday, September 7, 2021

A federal court out of Nebraska recently issued a decision providing a decisive post-Facebook v. Duguid victory for a company using a predictive dialer.

In Grome v. USAA Savings Bank, No. 4:19-CV-3080, 2021 WL 3883713 (D. Ne. Aug. 31, 2021), Grome alleged that USAA made several unwanted calls to her cell phone to collect a debt she incurred through the use of a credit card issued by the bank. The bank did not dispute calling the plaintiff without her prior express consent. The parties disagreed, however, as to whether the bank used an automatic telephone dialing system (ATDS) as defined under the TCPA.

An ATDS is defined by the TCPA as “equipment which has the capacity (a) to store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers.” 47 U.S.C. § 227(a)(1). As we have previously discussed, the Supreme Court’s decision in Facebook clarified that unless the dialing equipment uses a random or sequential number generator, businesses will not be required to obtain prior written consent from the consumer before contacting them.  Under the Supreme Court’s recent interpretation, equipment that merely dials from a list, and does not incorporate the use of a random or sequential telephone number generator is not bound by the TCPA’s requirements to obtain prior express consent before making calls or sending text messages using an ATDS.

To make the calls to Grome, the bank used a predictive dialing system known as Aspect Unified IP (Aspect UIP). In order for Aspect UIP to initiate calls, the system had to be fed a specific list of telephone numbers by a USAA representative. Those lists, called “campaigns,” were generated using Aspect Advanced List Management (ALM)—a database containing telephone numbers provided by USAA members. Grome’s expert witness testified that Aspect UIP is a predictive dialer that “has the capacity to store or produce numbers to be called, using a random and sequential number generator, and it is equipment that dials telephone numbers from a stored list of numbers without human intervention.”

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Grome’s expert also asserted that campaign lists loaded into the Aspect UIP can be “filtered, sorted, and re-sequenced” according to prescribed rules set by ALM and USAA. The expert conceded, however, that the Aspect UIP system was not capable of generating telephone numbers from whole cloth. Nevertheless, the expert asserted that ALM supports a database technology known as Microsoft SQL Server and that random number generation and sequential number generation “are functions inherent within the Microsoft SQL Server database technology used within the Aspect [UIP].” Based on this potentiality, the expert maintained that Aspect UIP is equipment which has “the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers,” as well as “the capacity to dial stored telephone numbers without human intervention.”

USAA’s expert countered, arguing that Aspect UIP with ALM is not an ATDS post-Facebook because it did not use a random or sequential number generator. The bank’s expert also disagreed that the Microsoft SQL Server gave Aspect UIP “inherent” power to be a random sequential number generator.    

The Court agreed with USAA. First, the Court determined that Aspect UIP did not use a random or sequential number generator at all because it simply re-sequenced numbers from an existing list. The Court also noted that Facebook explicitly rejected the argument that a device that stores numbers and then dials those numbers automatically is an ATDS. The Court found that the undisputed facts were that the Aspect UIP does not randomly or sequentially generate numbers from whole cloth and is not capable of dialing telephone numbers beyond those stored in the campaign lists uploaded by USAA. 

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Second, the Court rejected Grome’s footnote 7-based argument from Facebook. That footnote, in relevant part, provides that:

[A]n autodialer might use a random number generator to determine the order in which to pick phone numbers from a pre-produced list. It would then store those numbers to be dialed at a later time. In any event, even if the storing and producing functions often merge, Congress may have “employed a belt and suspenders approach” in writing the statute.

The Court concluded that it was undisputed that Aspect UIP was not using a random number generator to determine the order in which to pick phone numbers. Moreover, the Court determined that Grome had taken the footnote out of context because it followed a sentence which explains that an autodialer could include “devices that used a random number generator to store numbers to be called later (as opposed to using a number generator for immediate dialing).”  And both parties agreed that was not what Aspect UIP had actually been programed to do.

Finally, the Court rejected Grome’s assertion that Aspect UIP qualifies as an ATDS because it has the capacity to store and produce telephone number using a random or sequential number generator. The Court reasoned that although neither the Supreme Court nor the Eighth Circuit has specifically addressed what “capacity” means in the TCPA’s definition of automatic telephone dialing system, other courts agree that the term refers to present capacity. The court found that the undisputed evidence was that Aspect UIP does not have the present capacity to use a random or sequential number generator to produce or store telephone numbers. Notably, the court concluded that even if the system could be programmed to generate random or sequential numbers, “that would be introducing autodialer functionality into the Aspect UIP where it doesn’t currently exist.” And, in any event, there was no evidence USAA had ever actually taken those steps prior to calling Grome.

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Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.
National Law Review, Volume XI, Number 250

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Facebook Adds New Trend Insights in Creator Studio, Which Could Help Shape Your Posting Strategy




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Facebook’s looking to provide more content insight within Creator Studio with the rollout of a new ‘Inspiration Hub’ element, which highlights trending content and hashtags within categories related to your business Page.

Facebook Inspiration Hub

As you can see in these screenshots, posted by social media expert Matt Navarra, when it becomes available to you, you’ll be able to access the new Inspiration Hub from the Home tab in Creator Studio.

At the right side of the screen, you can see the first of the new insights, with trending hashtags and videos from the last 24 hours, posted by Pages similar to yours, displayed above a ‘See more’ prompt.

When you tap through to the new hub, you’ll have a range of additional filters to check out trending content from across Facebook, including Page category, content type, region, and more.

Facebook Inspiration Hub

That could be hugely valuable in learning what Facebook users are responding to, and what people within your target market are engaging with in the app.

The Hub also includes insights into trending hashtags, within your chosen timeframe, which may further assist in tapping into trending discussions.

Facebook Inspiration Hub

How valuable hashtags are on Facebook is still up for debate, but you’ll also note that you can filter the displayed results by platform, so you can additionally display Instagram hashtag trends as well, which could be very valuable in maximizing your reach.

Much of this type of info has been available within CrowdTangle, Facebook’s analytics platform for journalists, for some time, but not everyone can access CrowdTangle data, which could make this an even more valuable proposition for many marketers.

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Of course, overall performance really relates to your own creative, and thinking through the action that you want your audience to take when reading your posts. But in terms of detecting new content trends, including hashtag usage, caption length, videos versus image posts, and more, there’s a lot that could be gleaned from these tools and filters.

It’s a significant analytics addition – we’ve asked Facebook for more info on the rollout of the new option, and whether it’s already beyond test mode, etc. We’ll update this post if/when we hear back.

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Meta Updates Policy on Cryptocurrency Ads, Opening the Door to More Crypto Promotions in its Apps




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With cryptocurrencies gaining momentum, in line with the broader Web 3.0 push, Meta has today announced an update to its ad policies around cryptocurrencies, which will open the door to more crypto advertisers on its platforms.

As per Meta:

Starting today, we’re updating our eligibility criteria for running ads about cryptocurrency on our platform by expanding the number of regulatory licenses we accept from three to 27. We are also making the list of eligible licenses publicly available on our policy page.”

Essentially, in order to run any crypto ads in Meta’s apps, that currency needs to adhere to regional licensing provisions, which vary by nation. With crypto becoming more accepted, Meta’s now looking to enable more crypto companies to publish ads on its platform, which will provide expanded opportunity for recognized crypto providers to promote their products, while also enabling Meta to make more money from crypto ads.

“Previously, advertisers could submit an application and include information such as any licenses they obtained, whether they are traded on a public stock exchange, and other relevant public background on their business. However, over the years the cryptocurrency landscape has matured and stabilized and experienced an increase in government regulation, which has helped to set clearer responsibilities and expectations for the industry. Going forward, we will be moving away from using a variety of signals to confirm eligibility and instead requiring one of these 27 licenses.”

Is that a good move? Well, as Meta notes, the crypto marketplace is maturing, and there’s now much wider recognition of cryptocurrencies as a legitimate form of payment. But they’re also not supported by most local financial regulators, which reduced transaction protection and oversight, which also brings a level of risk in such process.

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But then again, all crypto providers are required to clearly outline any such risks, and most also highlight the ongoing market volatility in the space. This expanded level of overall transparency means that most people who are investing in crypto have at least some awareness of these elements, which likely does diminish the risk factor in such promotions within Meta’s apps.

But as crypto adoption continues to expand, more of these risks will become apparent, and while much of the crypto community is built on good faith, and a sense of community around building something new, there are questions as to how much that can hold at scale, and what that will then mean for evolving scams and criminal activity, especially as more vulnerable investors are brought into the mix.

Broader promotional capacity through Meta’s apps will certainly help to boost exposure in this respect – though again, the relative risk factors are lessened by expanded regulatory oversight outside of the company.

You can read more about Meta’s expanded crypto ad regulations here.

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Meta Outlines Evolving Safety Measures in Messaging as it Seeks to Allay Fears Around the Expansion of E2E Encryption




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Amid rising concern about Meta’s move to roll out end-to-end encryption by default to all of its messaging apps, Meta’s Global Head of Safety Antigone Davis has today sought to provide a level of reassurance that Meta is indeed aware of the risks and dangers that such protection can pose, and that it is building safeguards into its processes to protect against potential misuse.

Though the measures outlined don’t exactly address all the issues raised by analysts and safety groups around the world.

As a quick recap, back in 2019, Facebook announced its plan to merge the messaging functionalities of Messenger, Instagram and WhatsApp, which would then provide users with a universal inbox, with all of your message threads from each app accessible on either platform.

The idea is that this will simplify cross-connection, while also opening the door to more opportunities for brands to connect with users in the messaging tool of their choice – but it also, inherently, means that the data protection method for its messaging tools must rise to the level of WhatsApp, its most secure messaging platform, which already includes E2E encryption as the default.

Various child safety experts raised the alarm, and several months after Facebook’s initial announcement, representatives from the UK, US and Australian Governments sent an open letter to Facebook CEO Mark Zuckerberg requesting that the company abandon its integration plan.

Meta has pushed ahead, despite specific concerns that the expansion of encryption will see its messaging tools used by child trafficking and exploitation groups, and now, as it closes in on the next stage, Meta’s working to counter such claims, with Davis outlining six key elements which she believes will ensure safety within this push.

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Davis has explained the various measures that Meta has added on this front, including:

  • Detection tools to stop adults from repeatedly setting up new profiles in an attempt to connect minors that they don’t know
  • Safety notices in Messenger, which provide tips on spotting suspicious behavior
  • The capacity to filter messages with selected keywords on Instagram
  • More filtering options in chat requests to help avoid unwanted contact
  • Improved education prompts to help detect spammers and scammers in messages
  • New processes to make it easier to report potential harm, including an option to select “involves a child”, which will then prioritize the report for review and action

Meta messaging security options

Which are all good, all important steps in detection, while Davis also notes that its reporting process “decrypts portions of the conversation that were previously encrypted and unavailable to us so that we can take immediate action if violations are detected”.

That’ll no doubt raise an eyebrow or two among WhatsApp users – but the problem here is that, overall, the broader concern is that such protections will facilitate usage by criminal groups, and the reliance on self-reporting in this respect is not going to have any impact on these networks operating, at scale, under a more protected messaging framework within Meta’s app eco-system.

Governments have called for ‘backdoor access’ to break Meta’s encryption for investigations into such activity, which Meta says is both not possible and will not be built into its future framework. The elements outlined by Davis do little to address this specific need, and without the capacity to better detect such, it’s hard to see any of the groups opposed to Meta’s expanded encryption changing their stance, and accepting that the merging of all of the platform’s DM options will not also see a rise in criminal activity organized via the same apps.

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Of course, the counterargument could be that encryption is already available on WhatsApp, and that criminal activity of this type can already be undertaken within WhatsApp alone. But with a combined user count of 3.58 billion people per month across its family of apps, that’s a significantly broader interconnection of people than WhatsApp’s 2 billion active users, which, arguably, could open the door to far more potential harm and danger in this respect.

Really, there’s no right answer here. Privacy advocates will argue that encryption should be the standard, and that more people are actually more protected, on balance, by enhanced security measures. But there is also an undeniable risk in shielding even more criminal groups from detection.

Either way, right now, Meta seems determined to push ahead with the plan, which will weld all of its messaging tools together, and also make it more difficult to break-up its network, if any antitrust decisions don’t go Meta’s way, and it’s potentially pressed to sell-off Instagram or WhatsApp as a result.

But expect more debate to be had, in more countries, as Meta continues to justify its decision, and regulatory and law enforcement groups seek more options to help maintain a level of accessibility for criminal investigations and detection.

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