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

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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.

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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.

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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.


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

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Updating Special Ad Audiences for housing, employment, and credit advertisers

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On June 21, 2022 we announced an important settlement with the US Department of Housing and Urban Development (HUD) that will change the way we deliver housing ads to people residing in the US. Specifically, we are building into our ads system a method designed to make sure the audience that ends up seeing a housing ad more closely reflects the eligible targeted audience for that ad.

As part of this agreement, we will also be sunsetting Special Ad Audiences, a tool that lets advertisers expand their audiences for ad sets related to housing. We are choosing to sunset this for employment and credit ads as well. In 2019, in addition to eliminating certain targeting options for housing, employment and credit ads, we introduced Special Ad Audiences as an alternative to Lookalike Audiences. But the field of fairness in machine learning is a dynamic and evolving one, and Special Ad Audiences was an early way to address concerns. Now, our focus will move to new approaches to improve fairness, including the method previously announced.

What’s happening: We’re removing the ability to create Special Ad Audiences via Ads Manager beginning on August 25, 2022.

Beginning October 12th, 2022, we will pause any remaining ad sets that contain Special Ad Audiences. These ad sets may be restarted once advertisers have removed any and all Special Ad Audiences from those ad sets. We are providing a two month window between preventing new Special Ad Audiences and pausing existing Special Ad Audiences to enable advertisers the time to adjust budgets and strategies as needed.

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For more details, please visit our Newsroom post.

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Impact to Advertisers using Marketing API on September 13, 2022

For advertisers and partners using the API listed below, the blocking of new Special Ad Audience creation will present a breaking change on all versions. Beginning August 15, 2022, developers can start to implement the code changes, and will have until September 13, 2022, when the non-versioning change occurs and prior values are deprecated. Refer below to the list of impacted endpoints related to this deprecation:

For reading audience:

  • endpoint gr:get:AdAccount/customaudiences
  • field operation_status

For adset creation:

  • endpoint gr:post:AdAccount/adsets
  • field subtype

For adset editing:

  • endpoint gr:post:AdCampaign
  • field subtype

For custom audience creation:

  • endpoint gr:post:AdAccount/customaudiences
  • field subtype

For custom audience editing:

  • endpoint gr:post:CustomAudience

Please refer to the developer documentation for further details to support code implementation.

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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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See also  Facebook oversight board rulings so far
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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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See also  Facebook oversight board rulings so far
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