16 December 2020

Does The TCPA Apply To Text Messages?

Klein Moynihan Turco LLP


Klein Moynihan Turco LLP (KMT) maintains an extensive practice, with an international client base, in the rapidly developing fields of Internet, telemarketing and mobile marketing law, sweepstakes and promotions law, gambling, fantasy sports and gaming law, data and consumer privacy law, intellectual property law and general corporate law.
As its name suggests, the Telephone Consumer Protection Act of 1991 ("TCPA") was drafted, debated, passed, and signed into law well before cell phones became ubiquitous.
United States Consumer Protection
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As its name suggests, the Telephone Consumer Protection Act of 1991 ("TCPA") was drafted, debated, passed, and signed into law well before cell phones became ubiquitous. It is, therefore, unsurprising that the statutory language of the TCPA does not expressly state whether the law applies to text messages. This was a subject of great interest in recent oral arguments before the United States Supreme Court ("SCOTUS") in Facebook v. Duguid ("Facebook"). In Facebook, several of SCOTUS's textualist Justices wondered aloud whether the TCPA could or should apply to text messages, when the statute does not even mention them.

What was the Crux of the Justices' Questions?

Textual Limits of the TCPA

The TCPA prohibits "initiating any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system [ATDS] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service." 

During oral argument in Facebook, Justice Clarence Thomas expressed his confusion as to "why a text message is considered a call under the TCPA." In Facebook, the alleged TCPA liability did not involve telemarketing calls, but text messages. Indeed, Justice Thomas admitted that his question was not "central to [Facebook's] case." Despite this, counsel for Facebook seized on that question. He responded that the logic underlying the Justice's question could provide an alternative path toward ruling in Facebook's favor. Presently, the textual language of the TCPA does not specify whether it applies to text messages. Courts have, nonetheless, treated commercial text messages the same as telemarketing calls to "keep up with the times." Some of the Justices appeared to agree that the breadth of potential liability under the TCPA had been artificially expanded to adapt to recent technology.  Justice Samuel Alito implied that if SCOTUS could declare statutes obsolete, the TCPA might be a good candidate. Similarly, Justice Thomas declared that it was odd that they were attempting to apply an "almost anachronistic" statute, such as the TPCA, to text messages. 

The Current Interpretation of the TCPA

Despite SCOTUS's misgivings, lower courts and the Federal Communications Commission ("FCC") have all addressed the question, "Does the TCPA apply to text messages?" The answer has been a resounding "Yes." The FCC has consistently interpreted a "call" under the TCPA to include text messages, such as short message service ("SMS") texts. Lower courts across the United States have adopted that interpretation and allowed TCPA claims to proceed based upon plaintiffs' alleged receipt of commercial text messages.

Because this question was not at issue in Facebook, there is no reason to expect SCOTUS to change the TCPA's application to text messages. However, as readers know, the law surrounding the TCPA is constantly changing. Congress or the FCC may be compelled to revisit the statutory text if SCOTUS's forthcoming decision in Facebook results in a TCPA interpretive sea change. TCPA compliance is a moving target. Therefore, businesses must work with experienced counsel to ensure that their marketing calls and text messages do not run afoul of the law.

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Originally Published by Klein Moynihan, December 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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