Texting Post-Duguid: Can Consent Practices Change?

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP

Providing business teams with advice for sending text messages can be nothing short of frustrating. For businesses used to sending email marketing, the laws for texting are unexpected. Unlike the CAN-SPAM Act, TCPA requires prior express written consent if autodialed messages are sent that contain advertising content. And unlike CAN-SPAM, TCPA has a private right of action. On its face, the recent Supreme Court decision in Facebook, Inc. v. Duguid seemed to bring good news. The decision suggests that companies may be able to send, in several circumstances, automated texts to databases of current customers without running afoul of TCPA. There are still areas of confusion, though.

As we reported in our sister blog, the Court clarified what had been an area of confusion for some time: what is an autodialer, or an “automatic telephone dialing systems” (ATDS)? The TCPA regulations define ATDS as equipment that “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 Court ruled that to fall under ATDS, it was not enough that the equipment had the capacity to store numbers and to dial them automatically (as the Ninth Circuit before it had found). Instead, the equipment must either store or produce numbers using a random or sequential number generator.

The question, then, is whether a company’s texts are sent using technology that not only has the capacity but also actually stores or produces numbers using a random or sequential number generator. It is possible that company’s text campaigns may be sent using technology that only has the “capacity,” and they then fall outside of TCPA’s scope. On the other hand, the text campaign may be sent using technology that stores or produces numbers using random generators. If that is the case, then the campaign remains in-scope for TCPA.

Putting It Into Practice: This decision significantly narrows a company’s potential exposure under TCPA. The law does not, however, modify requirements around getting consent to send text messages that might exist at a state level, nor will companies always know if the vendors they are working with are, in fact, avoiding using an ATDS. As such, companies will still want to ensure that their express written (signed) consent mechanisms are in place when collecting cell phone numbers for marketing campaigns.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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