The Telephone Consumer Protection Act (“TCPA”) was introduced in 1991 before the rise of the cell phone, text messages, and broadband internet. It placed restrictions on then-contemporary technology used to reach consumers in an automated way and its primary purpose was to protect consumer’s privacy interests and public safety. Yet, it has proven to be an odd and increasingly outdated law. The federal government has made a good-faith effort to maintain the TCPA’s relevancy. However, evolving technology and inconsistent interpretations of the law’s fundamental elements have resulted in harm to consumers and businesses. During the COVID-19 pandemic, the law also interfered with efforts to disseminate information quickly and efficiently to the public at the detriment of consumers.

Last year, the Supreme Court brought some relief to businesses after it issued its highly anticipated decision in Facebook v. Duguid. The Court held that the capacity to use a random or sequential number generator to either store or produce phone numbers is a necessary feature of an Autodialer, rather than technology only needing the capacity to store phone numbers to be called and to dial such phone numbers automatically, a definition that once reached every American using a smartphone.

Unfortunately, the Court was unable to modernize the law. With innovative technologies and government-enabled programs directed at protecting consumers’ privacy and economic interests, restrictions on the type of technology used to make the calls are no longer necessary today. The government can effectively accomplish its goal by regulating the contents of the call, not the technology used to make the call.

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