Texting After Facebook v. Duguid—What Happens Now?

It has been weeks since the Supreme Court handed down a unanimous decision in the Facebook v. Duguid case, and we are still reeling! The telecommunications industry had been anxiously awaiting this decision, and the result was worth the wait.

TCPA and ATDS overview

The Telephone Consumer Protection Act of 1991 (“TCPA”) prohibits phone calls made or text messages sent using an automatic telephone dialing system (“ATDS”) unless the called party has granted prior express consent. 47 U.S.C. § 227(b)(1)(A). Over the past few years, a federal circuit split emerged on whether to interpret the ATDS definition broadly or narrowly, leading to inconsistent legal interpretations and many confused service providers. In Facebook v. Duguid, the Court finally resolved the split, clarifying that, for a device to be considered an ATDS under the TCPA, the device must have either the capacity to store a telephone number using a random or sequential number generator or to produce a telephone number using a random or sequential number generator.

The impact of this long-awaited clarification is substantial. Telecommunication providers have long lived in fear of TCPA violations and resulting class-action lawsuits, which have become increasingly more common and expensive. In the pre-Facebook texting world, most platform providers internally classified their technology as an ATDS and advised clients that the TCPA applied to any text messages sent, wanting to avoid the consequences of assuming otherwise.

Applying the Facebook decision

Now that the ATDS definition has been narrowly interpreted, many companies are feeling an unfamiliar sense of relief and looking forward to planning communication strategies free from the TCPA-related hurdles of the past. Over the past few weeks, I have been contacted by numerous clients asking about the Facebook decision and how it impacts a company’s texting protocol. Here are some pieces of advice for a company looking to apply the Facebook outcome to its texting practices:

1. Familiarize yourself with your texting platform provider’s technology

The ATDS technology is antiquated and not common in the texting world, but you should not assume that your text platform provider’s technology is not an ATDS as defined in the Facebook case. Reach out to your provider and ask about the technology being used to send text messages to your client. Ultimately you want a clear, definitive statement from your provider, in writing, that the technology being used to send your company’s text messages is not an ATDS. 

2. Understand that rules still apply

The most common misconception I have come across in the past few weeks is that the TCPA is the only restriction on text messaging. This is simply not true. Texting has a myriad of rules from various authorities that must be followed as part of a compliant texting program. These include, but are not limited to:

  • Fair Debt Collection Practices Act (FDCPA)
  • CFPB’s forthcoming Regulation F
  • Wireless carrier codes of conduct
  • CTIA Messaging Principles and Best Practices
  • CTIA Short Code Monitoring Handbook
  • Aggregator best practices, guidelines, and requirements
  • Texting platform provider best practices, guidelines, and requirements
  • Specific industry requirements
  • Internal business rules

It is important to note that many of the authorities listed above have been formulated based on the TCPA and closely, if not exactly, mirror the TCPA’s language. Just because the TCPA may not apply does not mean that any of these other rules have changed. Until and unless updates to these rules are made, they still govern.

3. Consent is still the best option

Putting any consent-related rules referenced above aside, getting consent from end-users before you text them is always the best practice. Your company’s text messages reflect your business, and you should engage with consumers that have requested your communications. It is a waste of time and resources to message consumers that do not want to interact with your business—keep your focus on the ones that do.

4. Keep it business as usual

What changes are we telling our clients to make post-Facebook? None. We are telling our clients to keep it business as usual—obtain consent, craft compliant messages, respect opt-out requests, and institute practices to analyze legacy mobile number data. We do not know what regulations or legislation will follow the Facebook decision. The best thing our industry can do right now is operate in a professional way and minimize consumer complaints.

The Facebook decision allows text platform providers and their clients to operate without the constant threat of litigation hanging over them, but it should not have a significant impact on current, compliant texting practices.

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