TCPA Stands for What Again?

Happy first week of December! As you’re getting back into the swing of things post-Thanksgiving, you might be wondering, why are we talking about the TCPA? Fair question. Some of you probably remember when it was a red-hot legal issue driving waves of class action litigation. Others might be asking, “What even is the TCPA?”

Either way, I’ve got you covered. In this article, we’ll revisit what the Telephone Consumer Protection Act (TCPA) is, how litigation around it has evolved, and why it may be making a comeback. So grab a cup of coffee and let’s dig in.

What is the TCPA?

The Telephone Consumer Protection Act (TCPA), affectionately known by its acronym, was enacted in 1991 during the George H. W. Bush administration. The law was designed to curb abusive telemarketing practices common at the time—namely unsolicited calls, automated messages, and faxes. Specifically, the TCPA targeted the use of automatic telephone dialing systems (ATDS) and prerecorded or artificial voice messages—issues that, apart from the faxes, are still familiar to many of us today.

Although the law was passed over three decades ago, the Federal Communications Commission (FCC) has continued to update its rules to keep pace with changing technology. The most recent major update came in 2012. While the original statute focused on calls and faxes, modern enforcement now includes text messages, prerecorded calls, and robocalls—any of which can impact how credit unions engage with members.

Facebook, Inc. v. Duguid

Let’s take a quick look at the 2021 Supreme Court case Facebook, Inc. v. Duguid, which clarified how the law defines an automatic telephone dialing system (ATDS) under the TCPA. In this case, Mr. Duguid received a text message from Facebook warning him of a login attempt from a new device. The problem? He didn’t have a Facebook account—had never even created one.

After unsuccessfully trying to stop the messages, Duguid sued Facebook, claiming it violated the TCPA. The case made it all the way to the Supreme Court, which ruled that an ATDS must have the capacity to use a random or sequential number generator—either to store or produce phone numbers and dial them.

This decision was significant because it narrowed the scope of what qualifies as an ATDS. Importantly, the Court clarified that if a business is dialing from a stored list of numbers—such as one voluntarily provided by consumers—that doesn’t meet the definition of an ATDS.

So, if most modern dialing systems don’t fall under the ATDS umbrella anymore… why does the TCPA still matter? Hang tight—we’re getting to that.

So why is the TCPA still relevant?

Even after the Supreme Court’s decision in Facebook, Inc. v. Duguid, the TCPA remains a significant compliance risk for businesses, including credit unions. While the ruling narrowed the definition of an automatic telephone dialing system (ATDS), it didn’t eliminate the broader obligations under the law.

Other key provisions of the TCPA are still very much in effect, especially those related to prerecorded or artificial voice messages and any calls or texts made without proper consent.

Credit unions regularly contact members by phone or text — whether to share account updates, send fraud alerts or promote new services. These interactions can easily trigger TCPA compliance requirements, especially when the outreach is for marketing purposes.

Litigation trends

TCPA litigation has evolved in recent years. Instead of focusing solely on whether a business used an automatic telephone dialing system (ATDS), many plaintiffs are now bringing cases based on claims of ineffective consent.

This shift underscores the importance of reviewing how consent is obtained and documented, especially when sending communications that fall under the TCPA’s scope. Whether it's a text, call, or prerecorded message, if it’s being sent without clear and legally valid consent, your institution could be exposed to risk. Staying aligned with both the statute and evolving court interpretations is key to reducing liability.

To sum it up…

The TCPA is far from obsolete. While the Supreme Court’s narrowing of the ATDS definition brought some relief, many key provisions of the law — especially around consent and prerecorded messages — remain fully in effect. As credit unions adopt new communication tools and channels, it's essential to ensure those efforts stay compliant with both the letter and the spirit of the TCPA.

In other words, this decades-old statute is still shaping how we engage with members today. What’s old is new again.

As always, this article is intended for general information only and does not constitute legal advice. If you have any questions about this topic and/or possible implications, you should contact your attorney for advice.

Hope to see you next time when we take a second to dig in on vendor management!

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