[crhulls]

I'm not too familiar with what the Supreme Court did with TCPA, but as a developer, we were hit by patent-troll equivalents who leveraged the law to shake down companies.

In our case, someone's sister invited him to join their account. The text message was initiated by the sister but our system sent the SMS via our backend. We were sued because we allegedly sent an unsolicited text message and were considered an autodialer under TCPA guidelines.

We were able to win the suit, but it cost hundreds of thousands of dollars. The law needed a tune up, and if the court decision stopped this type of troll suit some good came of it.

I am not defending robocallers. I hope they die. I just highlight that sometimes these laws do need to be tightened up to stop abuse the other way.

[shagie]

> I'm not too familiar with what the Supreme Court did with TCPA ...

June 24, 2021 - https://www.natlawreview.com/article/ripple-effects-supreme-...

> If you work in the Telephone Consumer Protection Act (TCPA) space, you are certainly aware of the landmark unanimous decision by the United States Supreme Court in Facebook v Duguid, in which the Court narrowed the definition of an automatic telephone dialing system (ATDS) to equipment that has the capacity to either store or produce numbers using a random or sequential number generator.

> ...

> On June 10, 2021, the District Court for the District of South Carolina held that the Aspect predictive dialer did not qualify as an ATDS because the evidence proved that the system could neither randomly nor sequentially store or produce numbers to be dialed

---

So, if you're working from a list of numbers, it's not an ATDS. It is only an ATDS if you're dialing random numbers or sequential numbers.

https://en.wikipedia.org/wiki/Facebook,_Inc._v._Duguid

> The Supreme Court's ruling was seen to be favorable to the telemarketing industry, since the decision narrowed the definition of an automatic dialing system of which are regulated under the TCPA. As few actual automated dialers in use at the time of the decision incorporate the random or sequential number generator, telemarketers would be able to use other automatic dialing systems that do not meet this definition to engage in their business, according to the National Consumer Law Center. The National Consumer Law Center as well as Consumer Reports expressed concern that there would be a significant increase in unwanted telemarketing calls due to this decision.

> Senator Ed Markey, one of the authors of the TCPA, along with Representative Anna Eshoo, called the ruling "disastrous", as the Congressional intent of the TCPA was "to ban dialing from a database", and announced the same day of the decision that they would be looking to introduce amended legislation to address the Court's decision.

[CWuestefeld]

As described here, it seems like Congress has every opportunity to clarify the definition of ATDS. Surely they deserve as much blame as the Court, then.

[shagie]

The specific part of the law is: https://www.law.cornell.edu/uscode/text/47/227

> (1) The term “automatic telephone dialing system” means 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.

[guelo]

Congress has been purposefully broken by Republican's new requirement that all legislation must receive supermajority approval in the senate.

It's part of a coordinated plan to "drown the federal government in a bathtub": the courts read legislation as narrowly as possible while congress is unable to legislate.

[supertrope]

I disagree. The Supreme Court declined to void the Affordable Care Act’s individual mandate. They concluded that the government can’t mandate purchase of a private product under the commerce clause, but that this was really a tax which is an enumerated power. So while they could have gutted the law and pointed back to a Congress to pass a solution they found a way to not do so.

[supertrope]

Schoolhouse Rock should be updated to include the 60 vote Senate rule. Also the inevitable lawsuits as a fourth step following House, Senate, and Presidential approval.

[shagie]

I'm not sure a wider reading of the TCPA is possible for the definition of an automatic dialing system. Is there any other way the courts could read the definition provided in https://www.law.cornell.edu/uscode/text/47/227 ?

[CWuestefeld]

Thanks for looking that up. Yeah, from what's quoted here, it's perfectly transparent.

  (1) The term “automatic telephone dialing system” means 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.

Anybody who's claiming the Court is playing games here clearly has an agenda of their own. Congress dropped the ball.

[crhulls]

Look up Edelson, they are the troll firm that sued us. They have had significant success taking much wider interpretations of the law. Just like patent trolls they also assume most people will just settle - we did not but it was a gamble.

Here are some of the cases they brag about: https://edelson.com/inside-the-firm/905-2/

[CWuestefeld]

This is baloney. Let's look at the history

In the current legislative session [1], just counting the first page of Senate (I think you're referring to the Senate) votes listed because I'm lazy, out of the 100 votes, I see only 10 that failed. And of those passing, I didn't actually count, but a very large proportion are passing with less than 60 yeas.

Although we see a lot of political crap going on, the Congress still manages to do a lot of business.

[1] https://www.senate.gov/legislative/LIS/roll_call_lists/vote_...

[ceejayoz]

This is bad methodology. Laws blocked by a threatened filibuster don’t necessarily make it to a vote and thus don’t show up in this list.

Legislation passing with less than 60 votes still had to pass the 60 vote threshold. Some senators vote for debate but against the bill.

Note also how many are just confirmations of Senate-approved roles.

[CWuestefeld]

No. The parent comment claimed "Congress has been purposefully broken by Republican's new requirement that all legislation must receive supermajority approval in the senate." If you follow the link you'll see that lots of things passed with fewer than 60 votes. That claim is false on its face.

Further, for your criticism of my methodology to hold water, it would be necessary to see the total number of votes decreasing over time. That's not what the record shows. Using the same resource, I looked at each of the last few years, and then took a few steps back in 4-year steps thinking that maybe there's something corresponding to the point in the presidential election cycle. Either way, I don't see it going down at all. Quite the opposite.

  2021....528
  2020....292 (not hard to explain the drop in this year, I think)
  2019....428
  2018....274
  ...
  2014....366
  ...
  2010....299
  ...
  2006....279

The number of votes per year is clearly growing. And in the current session, at least, there's still a high proportion of votes passing, and of them many have a "yeas" count below 60.

[labster]

If that’s their interpretation of an obvious law to stop something 99% of people hate, I’m sure glad the Supreme Court doesn’t get to interpret the Constitution.

[shagie]

The law very clearly specifics what an automatic dialer is in https://www.law.cornell.edu/uscode/text/47/227

> (1) The term “automatic telephone dialing system” means 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.

[ntoskrnl]

What would the damages have been had you lost? I'm being called by a persistent "insurance" salesman that I'd love to take to the cleaners

[crhulls]

I think it is one of those things that would theoretically have been billions of dollars (hundreds of millions of invites have gone out and the statutory damages were on a per infraction basis), but practically speaking something very similar to a patent troll, so maybe in the $5-10m range? I'm just guessing. We are a later stage company.

[ntoskrnl]

I didn't know the damages were statutory - I guess I should look that up myself. In your case, was it a class action suit? If not, I wonder how they had standing to sue on behalf of thousands/millions of other users.

[oneoff786]

So you don’t know what the court did, but one time you had a bad experience with a law, so you’re gonna assume the court did a good thing?

[vanattab]

the case was unanimously decided.

[oneoff786]

That is irrelevant to the point

[ikiris]

If you allow people to send unsolicited invite sms… what did you expect? You should have lost

[crhulls]

The intent of the TCPA was absolutely not to disallow text messages being sent for app invites. We did not spam any contacts. A user invited their sister to join them on their account by manually selecting them from their contact list. We just sent the text message via Twilio vs having the user send it themselves.

And regardless of whether you like this or not, this was not the use case the law was implemented for, which is to stop robocallers.