In an opinion upholding the constitutionality of the Telephone Consumer Protection Act (TCPA) issued this month, Justice Kavanaugh wrote, “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.”
No matter the party lines, campaigns on both sides of the aisle have been falling prey to costly TCPA class actions. This year’s election cycle has been no exception and has spawned TCPA class actions against Bernie 2020 Inc. and Donald J. Trump for President, Inc.
The availability of high, uncapped, per-call statutory damages makes the TCPA extremely attractive to plaintiff’s lawyers. And with advancement in text messaging technology giving campaigns unprecedented abilities to efficiently and economically communicate directly with voters, TCPA compliance has become all the more a priority during election season.
Passed in 1992, the TCPA prohibits calls to cell phones using an “automatic telephone dialing system” (ATDS) without the prior express consent of the called party. The rule involves two discreet concepts: use of an ATDS, and consent.
Consent is a fairly straightforward concept in theory but could present practical and logistical burdens for campaigns. Generally speaking, prior express consent to receive autodialed text messages is obtained when an individual voluntarily provides their phone number to the caller.
Most courts and the FCC agree that once given, a consumer may revoke their consent. As such, using an ATDS to call or text consented phone numbers requires the implementation of compliance infrastructure to ensure campaigns are keeping accurate records of consent, identifying how and when consumers may revoke consent, and promptly honoring revocation requests.
These are processes that large, well-established institutions have spent significant money and human resources launching and refining over many years. And the burdens of adopting and maintaining such compliance regimes are, quite understandably, ones that campaigns may not want to shoulder in the midst of a critical election cycle.
That leaves the obvious choice: don’t use an ATDS. The TCPA defines an ATDS as “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.” The definition of an ATDS involves two issues. The first is one of “capacity.”
In other words, does the device have the capability to perform the functions of an ATDS, even if that capability isn’t actually used when calling or texting? The second is one of functionality. Do the functions the device is able to perform meet the criteria of an ATDS?
Lawyers, courts, and the FCC have spent countless pages of legal text grappling over exactly what functions meet the criteria for an ATDS. This has resulted in a hodgepodge of precedent across the country, some favorable to callers, some not.
Regardless, campaigns and other callers that have cross-jurisdictional operations are compelled to make compliance decisions based on the broadest and/or least favorable rules. In this respect, the broadest interpretation of the ATDS definition is brought to you by the Ninth Circuit, which has held that an ATDS is any device that has the “capacity” to dial “automatically” from a list of stored numbers without “human intervention.”
This interpretation means that “human intervention” becomes the dividing line between what is and isn’t an ATDS. Most courts and the FCC agree that devices which require a click, screen tap, or similar human action to launch each individual call or text involve enough “human intervention” to avoid classification as an ATDS.
Importantly, the FCC recently issued an important declaratory ruling in response to a petition brought by a coalition of providers and users of peer-to-peer (P2P) text message platforms. The FCC found that “if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one, that platform is not an autodialer and calls or texts made using it are not subject to the TCPA’s restrictions[.]” This remains the case even if the platform is capable of “dial[ing] thousands of numbers in a short period of time.”
The ruling is an important step forward for P2P and other similar one-click-per-text/call platforms that will likely help significantly mitigate TCPA risk for both platform providers and their users. In addition, it gives campaigns the flexibility of leveraging technological automation to communicate efficiently and directly with voters, while staying outside the regulatory space of the TCPA. But campaigns should still tread carefully.
Campaigns have a variety of text messaging platforms to choose from in the marketplace. Some are pure, standalone P2P platforms that integrate no other automated modes can only send messages in the manner described above by the FCC, and would, therefore, occupy a lower spectrum of TCPA risk. Other platforms are hybrid models that allow users to select from a range of both manual and automated messaging modes.
Importantly, while the FCC’s P2P ruling helped bring much-needed clarity to the human intervention question, the issue of whether a platform has the “capacity” to send messages automatically still remains an open source of TCPA risk.
Accordingly, platforms that integrate or provide access to both manual one-click modes, and other automated modes (i.e. that have the “capacity” to text or dial automatically) will likely pose greater TCPA risk versus their standalone P2P counterparts.
Importantly, given the huge downside posed by the TCPA’s uncapped statutory damages, it’s critically important that campaigns carefully evaluate the functions of any text messaging platform used for voter outreach efforts. Before making any decisions on such voter outreach strategies, campaigns should seriously consider consulting with experienced outside counsel to vet potential TCPA risk. Simply put, campaigns have better things to spend their funds on than defending class actions based on alleged violations of an antiquated law passed when cellphones were the size of bricks.
Artin Betpera is a partner at Womble Bond Dickinson, working in the firm’s business litigation practice group.