Last week, six House Democrats introduced H.R. 8334, the Robotext Scam Prevention Act, which seeks to expand federal telemarketing laws to, among other things, expressly cover text messaging.
It would likely surprise some people to hear that the Telephone Consumer Protection Act (“TCPA”)—the most-consequential statute for consumer telemarketing, usually cited as the largest feeder of consumer class actions in federal courts—does not reference texts at all. The FCC has tried to interpret text messages into the law and the Ninth Circuit has held that text messages are covered, but that conclusion has not been definitively reached in all courts or for all purposes.
The Supreme Court had a recent opportunity to speak on this issue as part of last year’s significant ruling in Facebook v. Duguid, 529 U.S. __ (2021). In Facebook, the Court narrowed the definition courts should apply for an “automatic telephone dialing system” (ATDS) and held that Facebook did not violate the TCPA when it sent text messages to Noah Duguid regardless of his alleged lack of consent. But the Supreme Court did not speak on the threshold question of whether a text message is even covered by the statute because the parties never asked it to. In a footnote, the Court said: “Neither party disputes that the TCPA’s prohibition also extends to sending unsolicited text messages. We therefore assume that it does without considering or resolving that issue.” Id., n.2 (citation omitted).
In response to Facebook, H.R. 8334 seeks to expand the definition of an ATDS; however, by also seeking to add a section covering text messages, this bill highlights that there remains a legitimate gap between the existing TCPA and the regulation of marketing text messages. Put succinctly, if text messages were already covered by the TCPA, there would be no need to amend the TCPA to cover text messages.
In a statement supporting the introduction of H.R. 8334, Congresswoman Katie Porter (D-CA) suggested there are “loopholes” in the TCPA being used by “criminals who perpetrate these scams.” But not everyone that interacts with their customers via text message is a scammer or fraudster. Rather, market watchers continue to report increasing use of text message marketing across various industries. Thus, while there are a lot of significant hurdles before this bill becomes a law, for anyone looking to ensure their consumer-facing policies and procedures are consistent with regulations and best practices, it’s important to keep an eye on what might be the standard of the future. Certainly, this proposed expansion of the TCPA will be worth watching.
In the meantime, anyone relying on text message marketing needs to navigate the high-risk requirements of state and federal regulations, as well as the guidelines of the Cellular Telecommunications Industry Association’s Short Code Monitoring Handbook. In addition to the substantive marketing strategy, companies need to keep multiple considerations and requirements in mind, including:
- Consent considerations of disclosure language, recordkeeping, opt-out requests, and third-party contracting;
- Logistics such as frequency, permissible call times, and holiday restrictions;
- Content practices concerning company/product disclosure and applicable charges; and
- Policy design, disclosure, training, and implementation.