Supreme Court decision a big win for texting

Supreme Court Facebook vs. Duguid Case Aids Texting!
April 1, 2021

Supreme Court decision a big win for texting

Common Sense

April Fools’ Day was a good day in the texting world. The Supreme Court handed down a 9-0 decision narrowly interpreting what constitutes an “automatic telephone dialing system” (ATDS) under the TCPA in the much-anticipated Facebook v. Duguid case. What constitutes an “ATDS” is critical because if you call or text using an ATDS and don’t have the recipient’s consent, you run the risk of being targeted with a class action lawsuit for statutory damages in the range of $1,500 per call or text. 

The decision is still being analyzed and of course we will all have to wait and see how lower courts interpret it. However, from our perspective, if you use texting as a communication tool, the risk of costly class-action litigation has decreased significantly. 

Disclaimer:  We can’t give you legal advice and, as always, you need to consult with your own legal counsel to navigate texting compliance in general and what this case specifically means for you.

That said, here are our main takeaways:

  1. Only Systems that Use Random or Sequential Number Generators Need to Worry. If the system you are using to send text messages doesn’t use a random or sequential number generator to store or produce phone numbers, then it’s not an ATDS and you are (mostly) in the clear TCPA-wise. 
  1. If You’re a Telemarketer, DNC Violations Still Attract TCPA Liability. Telemarketers still need to respect the National Do-Not-Call registry (and various comparable state lists). However, as was the case before, calls from or on behalf of political organizations, charities and telephone surveyors are not subject to the TCPA DNC rules. 
  1. TCPA Plaintiffs’ Bar Will Likely Shift Their Focus. In the short term, the TCPA Plaintiffs’ Bar will likely shift their focus to:
    * TCPA prohibitions on artificial/pre-recorded calls;
    * Telemarketing outreach that triggers TCPA DNC liability;
    * Various state statutes that impose penalties for calls (or texts) made without the appropriate consent using auto-dialing technology (that may be defined more broadly than in the TCPA but that mostly focus on telemarketing); and
    * Creatively and aggressively interpreting the Facebook decision to try to persuade lower courts to adopt a broader interpretation of an ATDS, especially in relation to the concept of “capacity”.
  1. The Hammer is Now in the Hands of the Carriers. AT&T and T-Mobile, working with Campaign Registry and, for political traffic, Campaign Verify, are in the midst of rolling out a new A2P 10DLC regime to purportedly self-regulate texting traffic sent via ten-digit long codes within the United States. There are registration and vetting processes, hurdles and fees, potential penalties and varying levels of “algorithmic” filtering, most of which are still being developed literally while this system is being rolled out. It’s messy and deadlines seem to be constantly shifting but you can’t stick your head in the sand. In addition, various national advocacy and labor groups are concerned that too much power is being placed in the hands of the carriers and are urging Washington leaders to intervene. This new system does NOT apply to toll-free or short code numbers (yet). We can help you understand which types of texting channels makes the most sense for you. And as an official Campaign Registry partner, we can help you get registered.
  1. Beware of Reactive Legislation Being Enacted for Political Gain. There is widespread bipartisan loathing of “robocalls” and, as such, a danger that the Facebook decision could be “spun” to spur the hasty enactment of state and/or federal legislation that could end up being more restrictive and punitive than the previous landscape. 
  1. Opt-Ins Are Still the Gold Standard. Irrespective of what happens with lower court interpretations of the Facebook decision, A2P 10DLC or new (or existing) state or federal legislation, one thing remains clear:  if you have opt-ins, you are golden. Ultimately, if you can show that the recipients of your messages or calls consented to or otherwise invited your communication, it’s difficult for anyone to cry foul. 

So, Is Now the Time to Throw Caution to the Wind and Text-Blast like Crazy?

We certainly wouldn’t recommend it. In fact now, more than ever, organizations should focus on using texting to communicate personally and respectfully with their target audience. This is a great time to think through your communication strategy to ensure that you are collecting end user opt ins, tailoring and personalizing your communication to make it relevant to your target audience and, of course, always ensuring that users have a way to opt-out or adjust their text-messaging preferences.

We’d be happy to talk with you about how you can use to communicate with your constituents, donors, volunteers, customers and other stakeholders in a more tailored and personalized fashion.

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