The Divided States of America – Mass Texting Edition

As Election Day approaches, there’s no doubt that candidates and political groups will be urging their supporters – and complete strangers – to get to the polls by sending an unprecedented amount of text messages. But before you hit “send,” you should know that Telephone Consumer Protection Act (TCPA) class action litigation may be lurking around the corner depending on (1) the type of text messaging platform you’re using, and (2) where your message recipient is located.

Simply put, there are two wildly different interpretations of what constitutes an autodialer under the TCPA currently employed by different federal circuit courts. So conflicting that the Supreme Court is currently hearing a challenge to an earlier Ninth Circuit ruling to resolve the circuit split. With the Trump Administration backing a narrow construction of the statute, the Supreme Court likely could force many plaintiffs’ attorneys back to chasing ambulances instead of text messages. But unless and until that happens, here is what you should know about the current TCPA autodialer landscape.

First, for the uninitiated, the TCPA, among other things, makes it unlawful to (1) initiate (2) an autodialed text message (or call) to a wireless telephone number (3) without the recipient’s prior express consent. The appeal of the TCPA to the plaintiffs’ bar is that it provides for uncapped statutory damages - $500 per message sent in violation of the statute, with treble damages available for willful violations – and TCPA cases are primarily pursued as class actions. This means that a campaign sending out just 10,000 unsolicited text messages could face at least $5 million in statutory damages. And it’s possible that campaign managers and senior staff could face personal liability if they were highly involved in the messaging campaigns.

That is – if the messages are autodialed. To put a finer point on it, non-autodialed informational text messages – such as get-out-the-vote messages – fall outside the TCPA completely, even if unsolicited. This is why the interpretation of what equipment constitutes an autodialer is so important.

The TCPA itself defines an autodialer – or Automatic Telephone Dialing System (ATDS) – as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” For over a decade after the TCPA was enacted, the Federal Communications Commission interpreted this term to embrace a specific type of technology – one that could be plugged into the telephone network, and once turned on, could automatically send out robocalls to random or sequential telephone numbers – the telephonic equivalent of carpet bombing. Needless to say, technology has evolved since the George H.W. Bush Administration, and it became not only possible, but much more economical, for callers to contact curated lists of telephone numbers. In fact, the former FCC majority under Chairman Wheeler asserted in 2015 that “little or no modern dialing equipment would fit the statutory definition of an autodialer” – unless the statute was reinterpreted to embrace the “future” capacity of any platform that could potentially add a random or sequential number generator. 2015 TCPA Order, ¶ 20. Thankfully for anyone with a smartphone, the D.C. Circuit vacated the FCC’s autodialer decisions in early 2018, but the FCC has yet to issue a Commission-level decision responding to this reversal. This is somewhat surprising because in his dissent to the FCC’s 2015 TCPA Order, then Commissioner, now FCC Chairman Pai, plainly stated that:

Congress expressly targeted equipment that enables telemarketers to dial random or sequential numbers in the TCPA. If callers have abandoned that equipment, then the TCPA has accomplished the precise goal Congress set out for it. And if the FCC wishes to take action against newer technologies beyond the TCPA’s bailiwick, it must get express authorization from Congress—not make up the law as it goes along.

In the absence of a binding FCC interpretation, where we are at today is that courts have stepped into the breach, and some have effectively made up the law in an attempt to capture modern texting platforms that have no capacity to generate telephone numbers at all, whether randomly, sequentially or otherwise. Specifically, three Circuit Courts of Appeals have adopted a very expansive view of what constitutes an autodialer – all starting with the Ninth Circuit’s Marks v. Crunch case, which held that a platform is an ATDS if it simply has the capacity to store numbers to be called, and to dial such numbers automatically. Marks left open exactly what level of human intervention would be sufficient to take it outside of dialing “automatically,” but the Second Circuit’s recent Duran v. La Boom Disco case squarely held that a mass texting platform was an autodialer under the Marks approach.

In contrast, consistent with the statutory definition of an autodialer, basic rules of grammar and the historic interpretation of the TCPA, three other Circuits have effectively ruled that unless the system can itself randomly or sequentially generate telephone numbers to be called, it cannot be an autodialer. In practical terms, this means that a system that can only dial from curated lists uploaded into the platform is not an autodialer, even if the resulting messages are sent in bulk.

What this means in practice is that for the states and territories encompassed by Second, Sixth and Ninth Circuits, bulk texting without consent is very likely a violation of the TCPA. Conversely, bulk texting through messaging platforms in the Third, Seventh, and Eleventh Circuit states and territories should be permissible if the platform itself cannot generate any telephone numbers. The states and territories corresponding to each Circuit are as follows:

The states and territories covered by the remaining six Courts of Appeals are in the gray zone – meaning there is no clear and binding precedent across those circuits, but only more or less favorable district court-level autodialer decisions that fellow judges can effectively ignore as they deem fit. At least until the Supreme Court issues a decision – for better or worse.

So where does this leave campaigns until the Supreme Court rules – with a decision possibly not coming until summer? Most texting platforms should be fairly safe to use in the Third, Seventh, and Eleventh Circuits, provided that the platform cannot randomly or sequentially generate telephone numbers itself (and I have yet to see a platform that can). In states like California that have fully embraced Marksism, you should only consider using peer-to-peer (P2P) texting platforms, but even then you should have the service vetted to ensure that it doesn’t have the capacity to automatically dial from stored lists of numbers – because the system’s capacity is determinative, not necessarily how you use it. In the remaining TCPA “battleground” states, there are no brightline rules at the moment, so your campaign’s risk tolerance and resources to engage in P2P messaging will be factors to consider, although a vetted P2P platform will be the safer alternative.

But no matter which technology you choose, or how your candidate performs on election day, just remember that the sun will still come up on November 4. Maybe.