Two recent developments involving the Telephone Consumer Protection Act (TCPA) highlight ongoing disputes over restrictions surrounding the use and definition of automatic telephone dialing systems (ATDS) for calls and text messages placed to mobile devices—the source of thousands of class action lawsuits seeking millions of dollars in statutory damages. The two cases, one a U.S. Supreme Court decision involving an exemption for government-debt collection calls, and the second a Declaratory Ruling issued by the Federal Communications Commission involving peer-to-peer (P2P) texting platforms, reaffirm that any person making such calls and texts must proceed with caution given the strict regulatory requirements and high risk of litigation.
Supreme Court Strikes Down TCPA Government-Debt Collection Exemption
In a long-awaited legal challenge to the TCPA, the Supreme Court struck down an exemption that had allowed government-debt collectors to make calls to wireless devices using an ATDS without prior express consent from the recipient. Despite requests by the plaintiffs to eliminate the ATDS prohibition entirely, the Court struck down only the government-debt collection exemption, leaving the ATDS restrictions intact. The plaintiffs, a coalition of political consultants, argued that the ATDS prohibition unduly restricted speech in violation of the First Amendment. Rather than eliminate the ATDS prohibition, the Court held that the government-debt exemption was unconstitutional because it was unjustifiably content-based and severed the exemption from the remainder of the TCPA. In short, the Court retained the status quo for ATDS, meaning that disputes over the ATDS prohibition will continue to play out in courts across the country and plaintiffs’ class action attorneys may be emboldened to contemplate future litigation.
FCC Clarifies the Definition of ATDS
The FCC issued an important clarification for peer-to-peer (P2P) text messaging platforms, making clear that if a calling platform is not capable of originating a call without a person actively and affirmatively manually dialing each phone number, the platform is not considered an ATDS and calls made using the platform are not subject to the TCPA’s restrictions on calls to a wireless device. An ATDS platform must be capable of dialing random or sequential telephone numbers without human intervention, whether or not such functions are used for a particular call. The Commission also stepped back from its previous position that the definition of ATDS should be interpreted based on whether the calling platform or other equipment is used to make a large volume of calls. While the decision could clear the way for use of certain P2P calling platforms that fall within the strict confines of the decision, the Commission emphasized that the clarification was limited to the facts presented by the petitioners. Accordingly, texting parties should continue to be vigilant about closely evaluating the technology of any text messaging platform before sending any text message, especially the platform of a third-party provider or vendor.
If you have any questions about these recent rulings or about the TCPA in general, please contact any attorney in our office.