Two P2Ps in a Pod: The FCC Rules P2P Click-to-Text Platforms Are Not Autodialers

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

On June 25, 2020, the Federal Communications Commission (FCC) granted the P2P Alliance’s 2018 petition, squarely holding 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 on calls and texts to wireless phones [Emphasis added.]” The FCC further clarified that the fact that a platform can send texts to a “large volume” of numbers is not determinative of whether it is an autodialer. Additionally, the FCC reiterated that a party may still avoid Telephone Consumer Protection Act (TCPA) liability by obtaining prior express consent before using an autodialer. Namely, to the extent peer-to-peer (P2P) calls are made to parties that have “knowingly released” their numbers to the caller for a particular purpose, then calls “within the scope of that consent” do not violate the TCPA, even if sent using an autodialer.

The P2P Alliance is a coalition of providers and users of P2P text messaging services for schools, nonprofits and other groups. The P2P Alliance filed the above-referenced petition seeking clarification that texts sent via text messaging platforms fall outside the TCPA’s purview. “[P]eer-to-peer text messaging is a communications technology that allows organizations to use either an online platform or a mobile application to send text messages to recipients from a single sender to a single recipient to initiate a two-way communication.” As described in the petition, the click-to-text platform does not have the capacity to store or produce numbers to be called using a random or sequential number generator, but rather requires a person to manually dial each number and transmit each message one by one and allows the person to exercise discretion regarding the content of the text message by choosing to send a message from a prepared script, to modify the script before sending the text or to draft a message from scratch. While the FCC did not rule on a particular platform’s autodialer status, due to an insufficient factual record, it did clarify that a platform with the above characteristics would not be an autodialer.

The FCC also rejected the contention made by the National Consumer Law Center and other consumer groups that the TCPA’s restrictions should apply to P2P systems across the board because, otherwise, “telemarketers and spammers would immediately gravitate to P2P systems as a way to evade the TCPA’s restrictions on unwanted calls,” clarifying that “[t]he TCPA does not and was not intended to stop every type of call [Emphasis added.]”

The full FCC ruling is available here.

Why it matters: This ruling is significant for the P2P community as it reiterates the prior express consent applicable to these types of messages, which are sent to parties that “knowingly released” their phone numbers to callers and clarifies that a click-to-text system requiring manual dialing of messages that cannot randomly or sequentially generate numbers to be dialed does not constitute an autodialer. Further, while the circuit split on what constitutes an autodialer still rages on, with some ambiguity out of the U.S. Courts of Appeals for the Second and Ninth Circuits on the level of human intervention required to take a system out of the autodialer realm, this FCC ruling clearly and unequivocally states that human intervention required before each call is sufficient human intervention. One drawback of the ruling, however, is that systems that require significant human intervention in the lead-up to dialing numbers but that do not require human intervention to send each and every message manually (i.e., the system can make the next call or send the next text after significant human intervention up until that point) may constitute autodialers.

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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